Courts Martial

 

COURT MARTIAL

 

Citation: R v Hiebert, 2013 CM 3006

 

Date:  20130206

Docket:  201236

 

Standing Court Martial

 

Edmonton Garrison

Edmonton, Alberta, Canada

 

Between: 

 

Her Majesty the Queen

 

- and -

 

Private B. M. Hiebert, Applicant

 

 

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

 

 

REASONS ON APPLICATION MADE BY THE ACCUSED pursuant subparagraph 24(1) and 11(b) of the Canadian Charter of rights and freedomS

 

(Orally)

 

INTRODUCTION

 

[1]               Private Hiebert is charged with two offences punishable under section 130 of the National Defence Act:  the first one for trafficking in cocaine on or about 11 November 2010 contrary to subsection 5(1) of the Controlled Drugs and Substances Act; and alternatively a second one for trafficking in a substance held out to be cocaine on 11 November 2010 contrary to subsection 5(1) of the Controlled Drugs and Substances Act.

 

[2]               At the opening of this trial by Standing Court Martial on 4 February 2013, by way of an application made pursuant to subparagraph 112.05(5)(e) of the Queen's Regulations and Orders for the Canadian Forces (QR&O), and for which a notice in writing was received by the Office of the Chief Military Judge on 12 December 2012, Private Hiebert indicated that he was seeking an order from the presiding military judge for a stay of the proceedings pursuant to subsection 24(1) of the Canadian Charter of Rights and Freedom (hereinafter the Charter) for an alleged infringement of his right to be tried within a reasonable time guaranteed under subsection 11(b) of the Charter.

 

[3]               Mainly, the applicant is claiming that the unusual and unexplained long delay of 26 months taken to bring charges before this court martial since laid in December 2010 is unreasonable, especially considering the delay taken by the chain of command to refer the matter to the Director of Military Prosecutions for the preferral or not of charges laid against him on 7 December 2010, causing him a prejudice to his security interest and to his interest in a fair trial.

 

[4]               The evidence on this application consisted of an agreed statement of facts and a book of 29 different documents.

 

[5]               On 11 November 2010, a member of the Canadian Forces, Master Corporal Webber, witnessed Private Hiebert selling cocaine to a civilian in a bar in Brandon, Manitoba.  That witness reported this incident to his unit on 15 November 2010, and a complaint was filed on the same day to the Canadian Forces National Investigation Service (CFNIS) Western Region.

 

[6]               An investigator was tasked on 16 November 2010 to investigate this matter.  The witness was met.  Private Hiebert was also interviewed and confessed to the drug transaction.  Later, photographs of the bar were taken.  On 6 December 2010, the investigation was concluded.

 

[7]               On 7 December 2010, two charges were laid against Private Hiebert by a CNFIS investigator for trafficking in cocaine.  The day after, the CFNIS Western Region requested and obtained that the charges laid be entered into the Canadian Police Information Centre (CPIC) database.

 

[8]               On 5 January 2011, Private Hiebert voluntarily released from the Canadian Forces under item 4(b) of the table to QR&O article 15.01, which is on completion of a fixed period of service.  His release was not related to the charges laid nor to his conduct relating to drugs.  He provided the Canadian Forces with the address of his parents in St. Albert, Alberta, just outside of Edmonton, where he would be residing briefly.  He also ensured the Canadian Forces had an accurate cellular telephone number for him.

 

[9]               Later in January 2011, Private Hiebert moved into his current residence in Edmonton, Alberta.  He did not provide the Canadian Forces with his new address.  He maintained regular contact with his parents.  At no point in time did anyone from the Canadian Forces attempt to contact him at his parent's residence in relation to the charges.

 

[10]           Private Hiebert successfully completed an addictions program with Alberta Health Services on 4 February 2011.

 

[11]           On 30 August 2011, Private Hiebert changed his cellular phone number when his existing contract for cellular service expired.  He did not provide his new cellular phone number to the Canadian Forces.

 

[12]           In accordance with chapter 109 of the QR&O, the Commanding Officer of Private Hiebert referred, through a letter dated 13 September 2011, the two charges on the Record of Disciplinary Proceedings (RDP).  This letter was addressed to the Commander of Land Force Western Area (LFWA) who was the referral authority for this matter.  The letter was received on 27 September 2011 by LFWA headquarters.  The letter provided the address of Private Hiebert's parents in St. Albert, Alberta, where he could be contacted and also his former cellular number.  A copy of the letter was also sent to the Assistant Judge Advocate General (AJAG) Prairie Region.

 

[13]           Pursuant to his obligation set at subparagraph 109.04(3) of the QR&O, the Commanding Officer of the applicant made advise by fax, on 10 December 2011, to the Director of Defence Counsel Services (DDCS) of the choice of counsel made by Private Hiebert by sending a form by fax, dated 2 December 2011, and on which it was indicated that the latter wished to be represented by Major Sara Collins.

 

[14]           Major Collins was assigned by the Deputy DDCS as Private Hiebert's defence counsel on 17 January 2012, and on the same day, a request for disclosure was sent to the Director of Military Prosecutions (DMP).

 

[15]           On 29 February 2012, Major Collins sent Lieutenant-Colonel Marylène Trudel, Deputy Director of Military Prosecutions West (DDMP West), an email pointing out that it had been approximately 15 months since charges had been laid against her client, and asking whether a prosecutor would be assigned to this matter.  Major Collins also informed DDMP West that, in her opinion, this matter had caused Private Hiebert great emotional and physical distress and more unnecessary delay would likely aggravate his condition further.

 

[16]           Major Collins received an email response from Lieutenant-Colonel on 5 March 2012, in which she thanked her for bringing the matter to her attention, stated that she would forward the matter to the AJAG in charge of advising the chain of command and keep Major Collins informed.

 

[17]           By letter dated 3 May 2012, the charges against Private Hiebert were referred by the referral authority, the Commander of LWFA, to DMP.  It was received at DMP's office on 15 May 2012.  A copy of the letter was also sent to the AJAG Western Region.

 

[18]           On 16 May 2012, DDMP West assigned a prosecutor to perform the post-charge screening of this matter and conduct the prosecution if any charge was preferred.

 

[19]           On 31 May 2012, Lieutenant-Commander Leonard emailed Major Collins indicating that she had been assigned as the prosecutor for the matter about Private Hiebert, and stated that she anticipated being in a position to prefer charges the following week.  Prosecutor's email included a brief outline of the anticipated charges, an offer of resolution, and the dates she was available for full trial, which were in August and September 2012.  She indicated also that she would have dates available earlier in the event of a guilty plea.

 

[20]           In response to the prosecutor's email, Major Collins emailed Lieutenant-Commander Leonard on 4 June 2012, pointing out that in her opinion the delay of one year and a half since charges were laid in this matter has been unacceptable.  She indicated that she will seek instruction from her client concerning whether he would like to file an 11(b) application.  Major Collins asked that if this matter is proceeded with in spite of the delay, that charges be preferred and disclosure be provided to her immediately.

 

[21]           On that same day, a charge sheet was signed by the prosecutor.  Those two charges were preferred on 13 of June 2012 as indicated in the convening order.

 

[22]           On 22 June 2012, DDCS received the disclosure package for this matter, which was sent on 13 June 2012.  The disclosure package consisted of one audio-video recording of the CFNIS interview with the Private Hiebert, one audio-video recorded CFNIS interview with Master Corporal Webber, transcripts of these interviews totaling 194 pages, and 174 pages additional of additional documentary disclosure.

 

[23]           On 29 June, 2012, Lieutenant-Commander Leonard and Major Collins spoke over the telephone.  The prosecutor repeated her earlier offer regarding trial dates, August and September 2012.  Both counsel agreed that neither were available for a full trial until the end of August 2012.

 

[24]           On 23 July 2012, Major Collins sent an email to the prosecutor asking whether the charge sheet had been served on Private Hiebert.  The latter responded later the same day indicating that the charge sheet had not yet been served on Private Hiebert, but she expected it to be served in the near future.  In fact, the charge sheet was served on Private Hiebert on 28 August 2012 by the Military Police at Canadian Forces Base (CFB) Edmonton.  The MPs were able to locate and serve Private Hiebert by calling him and asking him to report to 1 MP Regiment Platoon at CFB Edmonton for service.

 

[25]           On 29 August 2012, defence counsel was informed by the prosecutor that her client was served with the charge sheet on the day before.

 

[26]           Between 10 September and 2 October 2012, discussions occurred between prosecutor and defence counsel in order to set a trial date; however, Major Collins lost track of her client and requested cooperation from the prosecution to be able to contact him.  The reality is that Private Hiebert obtained civilian employment with Gateway Entertainment Centre from 20 September 2012 until 4 November 2012.  The prosecution provided Major Collins with three telephone numbers in order for her to reach her client, what she was unable to do.

 

[27]           During those discussions, the date of 5 November 2012 was suggested by the prosecutor for trial but defence counsel indicated that she was unable to proceed on that week.

 

[28]           On 6 November 2012, Major Collins emailed Lieutenant-Commander Leonard confirming a telephone conversation from the previous day with her client.  However, defence counsel also confirmed that the prosecutor assigned to the case was now unavailable to bring this matter to trial before leaving for a one-year maternity leave of absence in December 2012.  Then, Major Collins once again pointed out that, in her opinion, the delay in bringing this matter to trial has been excessive and asked that another prosecutor be assigned immediately.

 

[29]           Private Hiebert, through his defence counsel, filed on 13 November 2012, an initial notice in writing for a preliminary application, alleging that his right to be tried within a reasonable time, guaranteed under subsection 11(b) of the Charter, had been and was continuing to be breached.  On that same day, defence counsel emailed Lieutenant-Colonel Steven Richards, DDMP West, complaining about delay.  She indicated to him that she was available for a trial on the week of 10 December 2012, which she specified that it was subject to notification with a will say statement by prosecution.

 

[30]           On 14 November 2012, Major Collins was informed by Lieutenant-Colonel Richards that the matter had been reassigned to Major Curliss as the military prosecutor.  On 15 November 2012, she contacted Major Curliss by email asking when he would be in a position to provide the prosecution's will say statement and set a date for this matter. On 19 November 2012, Major Curliss advised the Court Martial Administrator (CMA) by telephone that he now had carriage of this matter.

 

[31]           On 20 November 2012, the CMA contacted counsel acknowledging receipt of the applicant's notice in writing for a preliminary application, dated 13 November 2012, and informed counsel that the Chief Military Judge (CMJ) had offered to hold a teleconference with both counsel as early as 21 November 2012, for the purpose of setting a date for this matter.  On 20 November 2012, Major Collins received prosecution's will say statement for this matter by email.

 

[32]           A conference call was scheduled with the CMJ and both counsel for 0930 hours on 21 November 2012, for the purpose of setting a trial date.  The trial was set down for 4 February 2013.  Counsel were both available for trial the week of 10 December 2012, however, the CMJ was unable to schedule for this date.  The next date which was available to both counsel was 28 January 2013, but Private Hiebert preferred proceeding on 4 February 2013, as he anticipated that he would be working up north the week of 28 January with his civilian employer.

 

[33]           On 10 December 2012, Private Hiebert withdrew his initial notice in writing for a preliminary application dated 13 November 2012, and on 12 December 2012, he filed the current notice in writing for a preliminary application alleging a violation of his rights under subsection 11(b) of the Charter.

 

[34]           Private Hiebert attended one academic year of university from September 2011 to April 2012 with the Faculty of Physical Education and Recreation at the University of Alberta, Edmonton campus, and he obtained his current fulltime civilian employment with Petrospec Engineering on 5 November 2012.

 

[35]           Section 11(b) of the Charter reads in part as follows:

 

11. Any person charged with an offence has the right

 

b) to be tried within a reasonable time;

 

[36]           As recognized by the Supreme Court of Canada in the decision of R v Morin (1992) 1 SCR 771, at page 786, the purpose of subsection 11(b) of the Charter is to protect specific individual rights, which are the right to security, the right to liberty and the right to a fair trial.  On this issue, in its decision of R v Godin, 2009 SCC 26, the Supreme Court of Canada added these comments at paragraph 30:

 

Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3.

 

[37]           At the same time, the Supreme Court of Canada clearly mentioned in the decision of Morin that these rights have to be assessed in the context, as a whole, of the existence of a societal interest for "ensuring that those who transgress the law are brought to trial and dealt with according to the law" (see page 789 of the Morin's decision).  This social interest takes a unique sense when considering the purpose of the military justice system. As mentioned by Lieutenant-Colonel Cloutier in his thesis entitled, L’utilisation de l’article 129 de la Loi sur la défense nationale dans le système de justice militaire canadien, thèse de maîtrise, Ottawa, Faculté des études supérieures, Université d’Ottawa, 2003, at page 17 :

 

(TRANSLATION) The military justice system aims to control and influence the behaviors and ensure maintenance of discipline with the ultimate objective to create favorable conditions for the success of the military mission.

 

[38]           It is important to note that the accused has to prove, on a balance of probabilities, the breach of his right to be tried within a reasonable time.

 

[39]           Additionally, section 162 of NDA imposes to the actors within the military justice system, once a charge is laid, to act expeditiously with charges "as the circumstances permit". Essentially, as stated by the Court Martial Appeal court at paragraph 14 in R v Langlois, 2001 CMAC 3, this section "restates in its own way subsection 11(b) of the Charter".

 

[40]           In R v Grant, 2007 CMAC 2, the court martial appeal court went further when it said at paragraphs 26 and 27:

 

[26]         The appellant relies for his argument upon section 162 of the Act which stipulates that "charges under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit".  This obligation, it has been ruled by military courts, applies not only to the military police but also to military authorities at all levels.  It is premised on the need to maintain discipline in the Forces and, therefore, celerity is seen as of the essence of the process: see Corporal F. Vincent, Permanent Court Martial, Sherbrooke, 13 October 2000, page 25.

 

[27]         In R. v. Ex-Corporal S.C. Chisholm, 2006 CM 07, where the pre-trial delay amounted to 14 months from the time two charges of disobedience of a lawful command were laid, Commander Lamont M.J. asserted at paragraphs 14 and 15 of his reasons, in the following terms, the importance of section 162:

 

In the military justice system, in addition to vindicating the public right to justice, the maintenance of individual and collective discipline is of cardinal importance.  Military authorities at all levels are obligated by section 162 of the National Defence Act to deal with charges under the Code of Service Discipline "as expeditiously as the circumstances permit."

 

The unnecessary lapse of time between the commission of an offence and punishment following a trial diminishes the disciplinary effect that can be achieved only by the prompt disposition of charges.  This distinguishes the system of military justice from the civilian criminal justice system where there is no disciplinary objective, nor is there any statutory obligation on any of the actors to proceed promptly at all stages of a prosecution. [Emphasis added]

 

[41]           The reality is that it just reflects what was said previously by the Supreme Court of Canada in R v Généreux, [1992] 1 SCR 259, at page 293:

 

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.

 

[Emphasis added by the court]

 

[42]           What is the meaning of the term "reasonable time" found in subsection 11(b) of the Charter?  The Supreme Court of Canada has set out the analytical framework for such things in Morin.  There are four principal factors that the court must examine and consider to determine whether, in a particular case, the time taken to proceed to trial is unreasonable or not.  The use of those factors by a court martial was confirmed by the Court Martial Appeal court in R v LeGresley, 2008 CMAC 2.  They are:

 

            a.         the length of the delay from the time charges are laid until the conclusion of the trial;

 

            b.         waiver of any periods of time;

 

            c.         the reasons for the delay; and

 

            d.         prejudice to the accused.

 

[43]           In its consideration of the reasons for delay, the court must look at:

 

            a.         the inherent time requirements of the case;

 

            b.         the actions of the accused and of the prosecution;

 

            c.         limits on institutional resources; and

 

            d.         any other reasons for delay.

 

[44]           As stated by Judge Lamont in R. v. Corporal Wolfe, 2005 CM 48, at paragraph 14 and 15:

 

[14] These factors guide the court in its determination, but they are not applied in a mechanical way, nor should they be considered as immutable or inflexible, otherwise this provision of the Charter would simply become a judicially imposed statute of limitations upon prosecutions.

 

[15] It is not simply the periods of delay that the court is concerned with.  Rather, it is the effect of delay on the interests that section 11(b) is designed to protect.  In assessing the effect of delay, it is important to remember that the ultimate question to be decided is the reasonableness of the overall delay between the time charges are laid and the conclusion of the trial.

 

[45]           Having said that, this court will turn now to the analysis concerning this application.

 

[46]           The first factor that has to be considered is the length of the delay.  As stated in Morin at page 789, in order to determine it, this court must consider the period of time from the laying of charges in accordance with QR&O subparagraph 107.015(2) to the end of the trial.  As the evidence heard by this court establishes, charges against Private Hiebert were laid on 7 December 2010.  The end of this trial may be considered as the end of this week, which is 8 February 2013.  Then, the length of the delay is 26 months and it is sufficient to raise an issue as to its reasonableness.  In fact, this period of time does demonstrate that the charges were not dealt with in a prompt manner, as it is required by the Canadian military justice system.

 

[47]           In addition, the prosecutor conceded that such delay is an invitation to the court to scrutinize it in a deeper way.

 

[48]           The second factor that must be considered by this court is the waiver of any period of time by the accused.  The court does not consider any period waived by the accused during this delay of 26 months.  As stated at page 790 in Morin, the waiver "must to be clear an unequivocal". An analysis of the delay clearly supports that there was not such waiver made by the applicant for any period of time.  However, the conduct of the accused once informed about the existence of the charge sheet on 28 August 2012 may raise some concerns.  The court considers that it deserves to be discussed later under the next factor concerning the reasons for the delay, and more specifically under the topic "actions of the accused".  The court believes that this conduct does not constitute any kind of waiver made by the accused.

 

[49]           The third factor for the analysis is the reasons for the delay.  As stated earlier, it consists of five specific reasons that this court has to consider.  It is important to say that some delay is inevitable when processing a charge within any justice system, including the military justice system.  It is just normal that it takes some time for making a case ready to proceed.  It is why it is important to make a deep analysis of the reasons that caused the delay to be able to reach a conclusion about its reasonableness.

 

[50]           As recognized by the Court Martial Appeal court in LeGresley at paragraphs 40 and 41, there are peculiar inherent time requirements to the military justice system when a charge has to be processed in order for an accused to be tried by a court martial.  As set out at Chapter 107 of the QR&O, the chain of command has to comply with some regulation requirements as soon as a charge is laid against one of its member.  The Commanding Officer must decide if he causes or not the charge to be proceeded with; however, he needs a legal opinion prior deciding such thing.  The referral authority, once he received the application for disposal of the charge from the Commanding Officer, shall forward it to the Director of Military Prosecutions with his recommendations.  Then, some time is necessary for the prosecution to make a decision about the preferral of the charges by meeting witnesses and analyzing documents.  Disclosure, trial preparation and availability of the defence counsel and the prosecutor have also to be considered before a case is declared ready to be heard at a court martial.  The complexity of a case has also to be considered.

 

[51]           In this case, it is interesting to note that, even if it cannot be computed in the delay, it took exactly three weeks to the police investigator, once tasked to investigate, to complete the investigation and lay charges.  Twenty-six days passed between the time the incident occurred and charges were laid.  It is a clear indication that this matter is not complex.

 

[52]           In addition, it took 19 days for the prosecutor to complete the post-charge screening, which is from the time she was assigned to the case to the time she signed the charge sheet.  It reflects clearly the fact that this matter is straightforward and not complex.

 

[53]           Finally, disclosure package is composed of two testimonies recorded on video, including the confession of the accused, and of some other documents.  It is an additional indication that this matter can be considered by this court as being a simple a case to deal with.

 

[54]           The nature of the offences must be also considered as a matter of procedure in order to understand the inherent time requirement to deal with the charges.  Essentially, according to the regulation, trafficking with a substance is an offence that cannot be dealt with by summary trial because any officer having summary trial jurisdiction is precluded from trying a person accused of such offences, considering that he has no jurisdiction on them.

 

[55]           Then, it is clear that the main decision to be taken was the one by the applicant's Commanding Officer to cause the charges to be proceeded with or not.  Once the decision is taken to cause the charges to be proceeded with, then they had to be referred directly to the referral authority pursuant to chapter 109 of the QR&O to have them be forwarded to the Director of Military Prosecutions in order to have a decision made to deal with them or not by a court martial.

 

[56]           It took nine months for the Commanding Officer to cause the charges to be proceeded with and it took and additional eight months to the referral authority to refer the matter to the Director of Military Prosecutions.  Then, it took a total of 17 months for the chain of command to bring the matter to prosecutorial authorities while it was known that charges could only be dealt with by court martial.

 

[57]           It would have been expected that such steps could have taken up to two months in order for the chain of command to have the file put in the hands of the Director of Military Prosecutions, considering that this case was not complex.

 

[58]           As indicated by the evidence, it took one month for the prosecution to have the charges preferred.  For setting a trial date, it is reasonable to believe that within three months, the trial would have started, considering discussions and availability of all actors.

 

[59]           Then, for this specific case, six months could be considered an inherent time requirement, or as a guideline, in order to assess what is the average time to bring a matter to trial from the time charges were laid.

 

[60]           As indicated by the Court Martial Appeal court in LeGresley at paragraphs 45 and 46, the burden is on the prosecution to explain why a period of 17 months taken by the chain of command is necessarily inherent to the military justice system, considering that it is in a better position to explain the administrative structure and requirements.  However, while recognizing that such period of time is unacceptable, no evidence was adduced by the prosecution in order to explain the need from an administrative or procedural point of view to take such time.  The evidence is silent on what would have been the way to proceed for the chain of command to make the appropriate decisions, and nothing was adduced about the required legal opinion to help the chain of command to make such decisions.

 

[61]           Absent of any evidence adduce by the prosecution, the court is allowed to consider that a period of six months, as suggested by the applicant, shall be considered as the inherent time requirement for this case and the guideline for the assessment of the situation.

 

[62]           Concerning the actions of the accused, on the overall period of 26 months considered by this court, there is some time where the applicant was not diligent, which is after the preferral of charges.  He knew that charges were preferred by the prosecution on 28 August 2012, but did not contact is counsel to discuss the matter.  To the contrary, it is his defence counsel with the cooperation of the prosecution, who went after him and finally talked to him on 5 November 2012 in order to discuss the situation and a trial date.  His attitude delayed the possibility to set an earlier trial date in August or September 2012 and clearly impacted on the ability of the military justice system to set the earliest date.  So, a period of three months, from the month of August to the month of October 2012 included, must be considered as the sole responsibility of the applicant.

 

[63]           On the other hand, it is clear that 15 of those 17 months taken by the chain of command to bring the matter to DMP must be considered as the sole responsibility of the prosecution and clearly contributed to delay the matter.  No explanation whatsoever was provided by the prosecution to explain such delay.

 

[64]           However, it is clear that once the file was received by DMP, no delay can be counted against the prosecution.  It was diligent to prefer the matter and was available as soon as possible in order to proceed with the case.  The change of prosecutor did not impact on the delay either, because the matter was set for trial one week after the assignment of a new prosecutor to the file.

 

[65]           There was no limit on institutional resources that was put to the court as evidence.  Except for a specific week in December 2012, there is no indication that judicial or prosecutorial resources put some limitation and caused any delay for this case to be tried within a reasonable time.  The time taken to set a date does not appear as excessive, considering that, except for the three-month period computed against the applicant, all actors involved where active and the earliest date available was used, considering the availability of the people involved.

 

[66]           Then, from the 26-month period taken to bring the matter to court martial from the time charges were laid against the applicant, three months are of the sole responsibility of the latter.  Now, from those 23 months left, eight months appears to have been the inherent time requirement for authorities to deal this matter, including the time to set a date, which appear to be reasonable in this case.  Then, the court is left with unexplained 15 months by the prosecution that extended without any reason the time to deal with this matter.

 

[67]           The court does not see any other reason for the delay.  Then, it will turn now to the prejudice caused to the applicant.

 

[68]           Through his counsel, the applicant requested that the matter be expedited in order, first, that a decision be made on the preferral of any charges that would tell him if he will be tried or not for the charges laid before a court martial, and then, in the context of getting the earliest date for trial.

 

[69]           As a matter of context, Private Hiebert was done with his military life and started a new life in the civilian world.  He completed an addiction program, he went back to school and he found a new job.  The only matter that kept him linked to the military world was those charges laid, for which the result of dealing with them could potentially impact on his civilian life.  Basically, he wanted to turn the page on the military and get along quietly with his civilian life but couldn't fully do it until charges were dealt with.

 

[70]           Despite notifying prosecutorial authorities that after 14 months, he heard nothing about the charges and the fact of waiting caused him some emotional and physical distress, nothing more happened for another three months.  It is only once the matter was put in the hands of the prosecution that things started to move on.  The applicant, however, put right away to the prosecutor the fact that delay to proceed in this matter was an issue and that if DMP preferred charges, that issue would be put to the court martial through a notice in writing for an application.  This attitude clearly contributed to the fact that the matter was preferred quickly by authorities.  Also, by serving his notice in writing to the prosecution and the Court Martial Administrator, while no date was set for trial, also made authorities to consider proceeding quickly.  The setting of a date was done within a week after a new prosecutor was assigned to the case in November 2012.

 

[71]           Then, the applicant took some actions that made the military justice system consider his perspective, except for the time the file was with the chain of command.

 

[72]           As stated at paragraph 66 by the Court Martial Appeal court in LeGresley:

 

Prejudice to the accused may be inferred from prolonged delay.  The longer the delay, the more likely that such an inference may be drawn.

 

[73]           Here, in this case, actions of the chain of command have prolonged unnecessarily for 15 months the wait for the applicant to have the charges laid against him, dealt with within a reasonable time. 

 

[74]           This delay had an impact in the interest of the applicant in a fair trial as the prosecution's evidence rely, among other things, on an eyewitness who would have to describe what he saw, heard and did in relation to the commission of the offence by the applicant.  Testifying after 26 months of the incident instead of 11 months can clearly have an impact on what a witness can remember, and on the ability of an accused to raise a defence and rebut the evidence adduce by the prosecution.  The addition of 15 months made it more likely that the applicant's cross-examination of a key witness be less effective in the circumstances.

 

[75]           Moreover, inaction of the chain of command had an impact on the interest of the applicant's right to security.  Charges hanging over the applicant's head for a longer period than it was supposed to be, because of the inaction of the chain of command, did cause greater stress and inconvenient to the applicant, while it could have been dealt with 15 months earlier while in his new civilian life.

 

[76]           Concerning the proof of actual prejudice, I must say that the fact that charges laid were put on the CPIC is not sufficient to demonstrate any prejudice to the applicant.  I found not other evidence of any actual prejudice.

 

[77]           I conclude that the applicant has proved on a balance of probabilities an inferred prejudice to his interest to a fair trial and to his right to security because of the excessive delay of 26 months caused by an unnecessary 15-month delay coming from the fact that the matter was in the hand of the chain of command for that period of time.  The reality is that the chain of command made that overall delay well beyond any reasonable guidelines because of its inaction, and as a result, the court draws an inference from that prolonged delay that the applicant suffered prejudice.

 

[78]           However, this situation must be balanced with the societal interest for ensuring that those who transgress the Code of Service Discipline are brought to trial and dealt with according to it in order to maintain discipline and respect of the law.

 

[79]           As stated in his letter, the referral authority concerning this matter clearly expressed that considering the nature and the circumstances of the offences, and despite the fact that the applicant was released from the Canadian Forces since charges were laid, it is still a legitimate interest for the military community that such conduct be denounced, regardless of his current status.  It is true that objectively, the charges are very serious.

 

[80]           However, the inaction of the chain of command, including the referral authority, reflects rather the opposite.  By adding 15 months to the usual time to bring such a straightforward matter to the hands of the prosecution, without any valid explanation or apparent reason, it seems that in the real message left by such an attitude was that bringing this matter forward was not really important as a matter of public interest to proceed.

 

[81]           I conclude that the progress of that case was delayed to such a degree that it violates the right of the applicant to be tried within a reasonable time.  As mentioned by Judge Juriansz of the Ontario Court of Appeal in R v Bruce, 2010 ONCA 689 at paragraph 23:

 

The public has an interest in having the charges dealt with on their merits.  The public also has an interest in having serious charges dealt with in a timely manner.

                                                                                                                          

[82]           Considering the conclusion of this court on the violation of the constitutional right of the applicant to be tried within a reasonable time, the court has no other choice, as the minimum remedy, to direct a stay of the proceedings.

 

FOR THESE REASONS, THE COURT:

 

[83]           GRANTS the application of the applicant.

 

[84]           DECLARES that the right of the applicant under subsection 11(b) of the Charter to be tried within a reasonable time on the charges on the charge sheet has been violated.

 

[85]           DIRECTS, pursuant to subsection 24(1) of the Charter, that the proceedings of this Standing Court Martial be stayed in the case of Private Hiebert.

 

 

Counsel:

 

Major D. Curliss, Canadian Military Prosecutions Service

Counsel for Her Majesty the Queen

 

Major S. Collins, Directorate of Defence Counsel Services

Counsel for ex-Private B.M. Hiebert