Courts Martial
Decision Information
Date of commencement of the trial: 14 April 2004.
Location: 6080 Young Street, 5th floor, courtroom, Halifax, NS.
Charges:
• Charge 1: Para. 117(f) NDA, an act of a fraudulent nature not particularly specified in sections 73 to 128 of the National Defence Act.
• Charge 2: Para. 125(a) NDA, wilfully made a false entry in a document signed by him that was required for official purposes.
Results:
• FINDINGS: Charge 1: Not guilty. Charge 2: Guilty.
• SENTENCE: A reprimand and a fine in the amount of $1000.
Decision Content
Page 1 of 19 Citation: R. v. Captain Khan, 2004 CM 14 Docket:C200414
STANDING COURT MARTIAL CANADA NOVA SCOTIA CANADIAN FORCES BASE HALIFAX
Date: 15 April 2004 PRESIDING:LIEUTENANT-COLONEL M. DUTIL, M.J. HER MAJESTY THE QUEEN v. CAPTAIN W.A. KHAN (Accused)
DECISION ON AN APPLICATION MADE UNDER S. 7 AND 11 (b) OF THE CHARTER FOR A VIOLATION TO BE TRIED WITHIN A REASONABLE TIME (Rendered orally)
INTRODUCTION [1] This is the court's decision with regard to the application made by the defence counsel under QR&O 112.05(5)(e); that is, that the right of the accused to be tried within a reasonable time under section 7 and 11(b) of the Charter has been infringed.
[2] As set out in the charge sheet dated 20 January 2004, which is marked Exhibit 2 in these proceedings, Captain Khan is charged with two offences under the National Defence Act. The first charge is laid under paragraph 117(f), for an act of a fraudulent nature not particularly specified in section 73 to 128 of the National Defence Act, and the second charge is laid under paragraph 125(a) for having wilfully made a false entry in a document signed by him that was required for official purposes.
Page 2 of 19 [3] The defence makes an application on the basis that Captain Khan's rights under section 7 and 11(b) of the Charter have been violated in that his trial did not take place within a reasonable time. The defence also argues that Captain Khan's rights to life, liberty and security of the person have also been infringed and that, of course, is more covered by section 7.
[4] The defence points to both the pre-charge and the post-charge delay in support of its argument, and in terms of remedy, the defence suggests that the only appropriate remedy in the circumstances of this case is a judicial stay of proceedings under section 24(1) of the Charter.
[5] The evidence in support of this application consists of Exhibit VD1-1, which is an admission by the prosecution under MRE 8(d) of a series of facts. This exhibit is entitled Standing Court Martial, T40 441 607 Captain W. Khan, Agreed Statement of Facts. It contains 19 paragraphs and relates to facts and events from the date where the alleged offences would have been committed, until the beginning of these proceedings.
THE EVIDENCE [6] The evidence consists, also, of VD1-2 and VD1-3, which are copies of the Dental Act and Discipline Regulations made under that Act for the province of Nova Scotia, and for which the court has taken judicial notice under MRE 15(1) and 15(2), respectively. VD1-4 is a copy of Policy Directive 003/00, entitled Prosecutorial Discretion in Post-Charge Screening, issued by the Director of Military Prosecutions. VD1-5 is a copy of the JAG, Judge Advocate General, Policy Directive 010/00 on Charge Screening Policy, and the court has taken judicial notice under Military Rule of Evidence 16 of these two directives. VD1-6 is an affidavit from Stephen Strickey, Deputy Judge Advocate within the office of the Assistant Judge Advocate General Atlantic, who provided legal advice to the officer commanding 1 Dental Unit Detachment in Halifax with respect to the charges laid on 16 July 2003 against Captain Khan. VD1-7 is another affidavit, that of Ms Murielle Lafrance, the legal assistant to the Regional Military Prosecutor for the Atlantic Region. The evidence in this application is completed by the testimony of three witness; that is, Captain Khan, Sergeant Hallett, and Major Hedley.
[7] The evidence shows that the first charge laid under paragraph 117(f) of the National Defence Act relates to an incident that allegedly took place between 1 May 2002 and 31 July 2002, at or near Halifax, Nova Scotia, and has Captain Khan, being a Canadian Forces Dental Officer, fraudulently obtained dentures for Mr Ronald Walsh, whereas the second charge laid under paragraph 125(a) of the Act, relates to an incident that allegedly took place on or about 27 May 2002, at or near Halifax, Nova Scotia, made an entry in a CF 555, Dental Laboratory Instructions Form, indicating that a prescription for a complete
Page 3 of 19 denture set-up of teeth in wax, was for V35 225 892 Petty Officer 1st Class E.M. Tremblay, knowing that this entry was false.
[8] The evidence indicates that Captain Khan reported, himself, his actions to his immediate supervisor, Major Franklin Hedley, between 26 and 29 July 2002. According to Captain Khan, he sent Major Hedley an email on 26 July 2002 because he had some doubts concerning something he had done.
[9] He met with Major Hedley and explained to him that he had made a mistake, an honest mistake. Captain Khan said that he expected this meeting to be his opportunity to resolve the situation. According to Captain Khan, he felt that he had become the public enemy No. 1 at the end of that meeting; however, Captain Khan referred to an analogy that Major Hedley would have made in relation to his conduct in a game of hockey, where the player spends two minutes in the penalty box after a minor penalty and resumes playing immediately after.
[10] Major Hedley denied that he made such an analogy during that particular conversation, but testified that he probably used that analogy in a previous conversation with Captain Khan, when he dealt with the questionable use of Internet by Captain Khan and the suspension of his Internet privileges at the time.
[11] Captain Khan testified that he had discussed the events related to the charges with many people during the whole period; that is, between July 2002 and April 2004. Major Rich Johnson, who was the officer commanding 1 Dental Unit Detachment in CFB Halifax, filed a complaint to the Formation Military Police Services in Halifax on 29 July 2002 at around 0900 hours, and Major Johnson provided a statement to the military police as well as a series of documents.
[12] At 1130 hours on 29 July 2002, the military police went to the pharmacy at the Base Hospital and spoke with Mrs Paula Allen with regards to work orders made by Captain Khan. From 1404 to 1522 hours on 29 July 2002, the military police interviewed Major Hedley, Captain Khan's immediate supervisor at the time. At 1600 hours on 29 July 2002, the military police, obtained the registry for after-hours access to the hospital from Master Seaman Patrick Hopper. From 29 July 2002 until 30 May 2003, the military police in Halifax conducted an investigation in relation to these alleged incidents. This period covers, roughly, 11 months.
[13] Sergeant Hallett, who was a Master Corporal at the time of the investigation, testified that he was in charge of that investigation section for the Halifax military police section. He supervised five investigators at the time. During July 2002, his section had between 36 and 38 active investigations. He said that he became aware of the allegations
Page 4 of 19 against Captain Khan on 29 July 2002 when he was contacted by Major Johnson, the officer commanding the 1 Dental Unit Detachment, Halifax.
[14] Sergeant Hallett said that he met with Major Johnson and Major Hedley in relation to these allegations and he was provided with some documents including a dental laboratory instruction form for a prescription in the name of Petty Officer Tremblay.
[15] On 6 August 2002, the military police interviewed Captain Khan and obtained a statement from him. The court is not aware of the nature and details of that statement, but Sergeant Hallett testified that the interview took approximately two and a half hours, and was videotaped. According to Sergeant Hallett, the tone was cordial, and Captain Khan stated that he had made dentures for somebody, and that no money was exchanged. According to Sergeant Hallett, Captain Khan did not disclose the identity of the beneficiary at first, but told that identity shortly after, and that the person was a Mr Walsh, and that he was a civilian employee working at the officer's mess.
[16] Sergeant Hallett testified that in late summer 2002, he was posted to HMCS Dockyard as the IC Security, but that he kept the responsibility and carriage of the investigation concerning Captain Khan. From September 2002, he was heavily tasked in his new job. This involved tasks dealing with force protection of visiting forces' ships and submarines, overall responsibility of security surveys and reports of DND properties. From August 2002 to May 2003, he was also responsible for the hosting and coordination of the unit security conference, which involves more than a hundred persons. He was also responsible for the security clearance updates for his personnel and the coordinator of a major project; that is, a new web database accessible to military police across Canada.
[17] According to Major Hedley, who became the officer commanding the dental detachment in August 2002, Sergeant Hallett informed him monthly of the investigation progress until November or December 2002. As Sergeant Hallett thought the investigation was complete, Major Hallett raised with him the issue of the dental laboratory instructions concerning Petty Officer Tremblay, and the concerns he had with regard to the sufficiency of that investigation.
[18] On 24 January 2003, Sergeant Hallett interviewed Mr Ronald Walsh, the beneficiary of Captain Khan's actions, as there was the issue to be clarified with that person whether there had been an exchange of money between him and Captain Khan for the alleged services.
[19] On 27 February, the military police, by message, requested their colleagues in Toronto to conduct an interview with Chief Petty Officer 2nd Class E.M. Tremblay with regard to their investigation. CPO2 Tremblay is the patient whose name appears on the dental
Page 5 of 19 laboratory instruction referred to in charge No.2. He was holding the rank of PO 1st Class at the time of the alleged offence.
[20] On 10 March 2003, CPO2 Tremblay was interviewed by the military police in Toronto. On 13 March 2003, the results of that interview were relayed to the CFB Halifax military police by message. CPO2 Tremblay has been promoted and posted outside Halifax in the summer of 2002.
[21] According to Sergeant Hallett, CPO2 Tremblay was tracked down in Toronto following the research conducted by another military police officer; that is, Warrant Officer Turcotte.
[22] In March 2003, Major Hedley phoned up the Acting Provost Marshall in Halifax to inquire about the ongoing investigation because he had not received any update since December. Major Hedley inquired, as well, in May 2003. On 30 May 2003, Sergeant Hallett had completed the investigation and submitted his report. It is important to note that Sergeant Hallett did not have the authority to lay charges, and that his report was forwarded to Captain Khan's unit for any action as they deemed appropriate.
[23] On 5 June 2003, Major Hedley contacted his unit legal advisor, Stephen Strickey, informing him that he had received a police report dealing with the allegations against Captain Khan. On 6 June 2003, the next day, the unit legal advisor received the police report and met with Major Hedley. A legal issue was raised by the DJA with regard to the authority of the chain of command in dealing with disciplinary issues, which was ultimately resolved on 11 July 2003. Between 6 June 2003 and 16 July 2003, the unit legal advisor obtained additional disclosure from the military police, and had meetings with Major Hedley and Sergeant Hallett to discuss evidentiary concerns as part of the regulatory mandatory precharge legal advice under QR&O article 107.03. On 4 July, the pre-charge legal advice was forwarded to Major Joy at the dental detachment. Major Joy, Major Hedley, and the legal advisor met on 9 July 2003 to discuss the file. On 15 July 2003, the post-charge legal advice required under QR&O article 107.11 was delivered to the dental detachment.
[24] The next day, on 16 July 2003, charges were laid against Captain Khan with regard to the alleged incidents, and the Regional Military Prosecutors in Halifax were notified. On 29 July 2003, Captain Khan applied to the Director of Defence Counsel Services to be represented by legal counsel. On 30 July 2003, a letter to refer the charges to the referral authority, in this case the Assistant Deputy Minister (Human Resources,— Military), ADM(HR-Mil), was signed by the officer commanding the detachment, Major Hedley. On 6 August 2003, the referral package was picked up at the dental detachment by a member of the AJAG's office, and the package was forwarded to ADM(HR-Mil) on 13 August 2003.
Page 6 of 19 [25] On 15 August 2003, a defence counsel was designated to represent Captain Khan. On 20 October 2003, the referral authority made an application to the Director of Military Prosecutions for referral to court martial after consulting with the higher echelons of Captain Khan's chain of command; that is, the Director General Health Services, and the Deputy Commander Canadian Forces Medical Group, in August and September 2003. This application was received by DDMP, that means the Deputy Director of Military Prosecutions, on 22 October 2003. From early November 2003 to early January 2004, the prosecutor, Major Holman, obtained disclosure of relevant material and interviewed potential witnesses which led to the initial disclosure of material on 7 January 2004 to Major Côté, the defence counsel. Possible trial dates were discussed between counsel by email between 12 January and 15 January 2004. The prosecution indicated that the matter could proceed to trial during the week of 16 March 2004, which defence counsel replied that he was not available, and suggested the trial could be held during the week of 19 April 2004.
[26] On 23 January 2004, the charges were preferred. On 27 January 2004, the prosecutor received a letter from the Court Martial Administrator, requesting counsel to agree on a mutually acceptable date for the commencement of the trial. Emails were exchanged between Major Holman and Major Côté on this issue. Major Holman indicated that he was available to proceed during the week of 19 April 2004, but that he was also available to proceed during the week of 16 March 2004. Major Côté indicated, then, that the week of 16 March was not acceptable for two reasons: first, a medical appointment with a specialist; and second, the fact that he had three scheduled trials in March 2004. A military judge was available to sit during the week of 16 March 2004, but not available for the week of 19 April 2004.
[27] On 11 February 2004, the Court Martial Administrator convened a Standing Court Martial to be held on 14 April 2004 to try Captain Khan on the charges that appear on the charge sheet dated 20 January 2004, that is marked Exhibit No. 2.
[28] Captain Khan testified that he observed, that from the time he was interviewed by the military police; that is, in August 2002, until the time he was charged; that is July 2003, that he observed change in the workplace. He said that he perceived that he lost respect from subordinates and referred to an incident during which a dental assistant openly challenged his integrity and accused him of giving preferential treatment to senior officers. He heard co-workers telling him, "Captain Con", like convict, "there is an MP here to see you". Captain Khan added that he had the impression that he was watched like a hawk. He testified that his career has not progressed since the alleged offences as he was prevented to attend career courses until the court martial was concluded; that he was denied postgraduate training; that he was allowed to be the aide-de-camp to the Nova Scotia Lieutenant-Governor, but only during his own time, i.e. during evenings and weekends. He also testified that his request to attend on a jump course was also denied for the official reason that it was not a good use
Page 7 of 19 of resources. He also testified to the effect that his request to have his MBA studies subsidised was denied erroneously, although he recognized that he had been granted leave from the office to pursue the programme, and this is corroborated by Major Hedley.
[29] Captain Khan said, that, since July 2002, his health was okay, although after a long pause he then added that he has since lost weight, suffers stress and anxiety over this issue, and that he did not receive much support from his unit. Captain Khan testified that he cannot sleep, that he wakes up at night dreaming that he is in a courtroom. He added that his performance has decreased and that he can't focus at work because of this particular issue. According to Captain Khan, he suffers from anxiety over the possible sanction for his behaviour. He says that everything seems to be against him, and that he was never kept informed of the upcoming disciplinary proceedings.
[30] During his testimony, Captain Khan had to be warned, on several occasions, with regard to his behaviour in court. He was extremely argumentative and even aggressive, and even argumentative with his own counsel. He refused to answer promptly to questions put to him by counsel in cross-examination and was even arrogant and impolite.
[31] According to Captain Khan, every decision involving a denial or refusal by his chain of command with regard to postgraduate training or career courses since July 2002, or any perceived improper treatment he would have received by his chain of command, or even co-workers and subordinates, were biased and driven by the alleged incidents. According to him, he has been the subject of close, undeserved scrutiny as a result of the alleged incidents. After having closely examined his evidence with the testimony of Major Hedley, the court is satisfied that Captain Khan may have had that impression, but that it is not supported by the relevant and credible evidence that is before the court.
[32] Major Hedley testified that Captain Khan is a young and relatively inexperienced dental officer which requires the level of supervision required for an officer of his rank and experience. In fact, Captain Khan enrolled in the Dental Officer Training Program in August of '98, and graduated in June 2001. He was posted to the Dental Detachment, Halifax in July of 2001 and this was the first posting, or his first posting as a qualified dental officer. Major Hedley testified that, prior to August 2002, Captain Khan's performance was satisfactory, despite weaknesses in the following areas: the need to focus on patients; his work relations with dental assistants; Captain Khan's use of information technology in the workplace; the proper prescribing practises; and, efficient record keeping.
[33] However, Major Hedley found Captain Khan to be very eager to work and learn, energetic, and always looking for new ways to improve the work environment. According to Major Hedley, Captain Khan's performance since August 2002 has even improved, and he testified that this fact was reflected in Captain Khan's PER.
Page 8 of 19 [34] With regard to the career progression of Captain Khan, Major Hedley refuted Captain Khan's allegations. With regard to the CF dental courses, he said that he only attended two of these courses himself in his whole career. He said that these courses are nice to have, but are not a prerequisite for promotion, for which Captain Khan is not even eligible yet because he doesn't have the minimum time in rank required to be promoted to the rank of major. With regard to the postgraduate programme allegedly refused to Captain Khan as a result of the incidents, Major Hedley justified the decision not to support Captain Khan's application in light of his relative inexperience, which could benefit from more general practise as a dental officer. He pointed out that the person selected for the program was a highly regarded dental officer of the rank of lieutenant-colonel, who, at the time of selection, was the commanding officer of the dental unit at CFB Valcartier, and who had 15 to 20 years' experience in the field of dentistry. Contrary to Captain Khan's perception, Major Hedley has not noticed, personally, any difference in treatment by the members of his detachment with regard to Captain Khan since the date of the alleged incidents. Major Hedley was not cross-examined by defence counsel and his evidence was not challenged in anyway, not even in assessing his testimony with the affidavit evidence and the admissions made by the prosecution with regard to any of his actions during the events that led to the charges before this court. So the court has not only examined his evidence by itself, but also in looking at all evidence before this court. Overall, he testified in a straightforward manner and the court has no basis to reject any part of his testimony.
[35] Captain Khan was never arrested or issued with any conditions as a result of the alleged incidents. He was never suspended from duty. He continued to perform his work as a dental officer at the dental unit detachment and was remunerated accordingly. He has continued to receive pay increases and pay increments as any officer of his classification for the same rank and experience.
POSITION OF THE PARTIES [36] The defence argues that the delay involved in this case covers a period of about 23 months, which consists of a period of 14 months and a half for pre-charge delay, and approximately 9 months for post-charge delay. The defence submits that those delays are, in their circumstances, excessive and unreasonable. According to defence counsel, the accused has not contributed to any delay, nor has he waived any delay during that period. The defence argues that Captain Khan has suffered prejudice, in that his health suffered and his career progression was unduly affected. The defence argues that the delays have had a significant impact on his health, where he lost weight, and suffers of anxiety and stress attributable to the overall delay.
[37] In terms of post-charge delay, the defence submits that there was no waivers and no actions from the accused, including his defence counsel, that contributed to the delay.
Page 9 of 19 The defence suggests that the investigation was completed, for all intents and purposes, after the interview of Captain Khan by Sergeant Hallett; that is, on 6 August 2003, and that it was a very easy investigation. In terms of prejudice to the accused, the defence submits that, quoting the decision of the Supreme Court of Canada in Morin, that the length of the post-charge delay alone is such that the prejudice to the accused can be inferred from that delay. Concerning the prejudice to Captain Khan, counsel argues that the evidence demonstrates that there exists a grave and profound impact to the accused's physical and emotional health, as well as a grave and profound impact on his professional life. So it is clear from the defence perspective, that the pre-charge delay should have an impact in the consideration by the court of the post-charge delay.
[38] In terms of remedy, the defence submits that this court should follow the approach of Chief Justice Lamer in Rahey, considering the extreme length of the delay, because any remedy short of a stay of proceedings would only perpetuate the violation of the accused's Charter rights. In support of its submissions, the defence has provided this court with a book of authorities that includes the Supreme Court of Canada decisions in R. v. Kalanj, R. v. Morin, R. v. MacDougall, R. v. Askov, R. v. L.(W.K.), R. v. Genéréux, Blencoe v. British Columbia (Human Rights Commision), as well as the Court Martial Appeal Court decisions in Perrier, Larocque and Langlois.
[39] The prosecution suggests that the investigation was not substantially completed on 6 August 2002, especially with regard to the issue of monetary exchange between Mr Walsh and Captain Khan, as well as the identity and information concerning Petty Officer Tremblay, as he then was, which required additional investigation.
[40] The prosecution also refers to the obligation set out in Chapter 107 of the QR&Os with respect to the mandatory pre-charge and post-charge legal review within the military justice system. The prosecution not only submits that the post-charge delay was reasonable under the circumstances, but also submits that the accused did not suffer any prejudice other than the ordinary stress related to an accused being charged of a criminal offence.
[41] With respect to the pre-charge delay, the prosecution refers to the right to life, liberty and security contained in section 7 of the Charter, in that the prosecution also submits that the only one that could be affected would be that right relating to security. And the prosecution submits that there is no evidence that Captain Khan's rights to life, liberty and security were violated, contrary to the situation revealed in the Perrier decision from the Court Martial Appeal Court. The prosecution suggests that there is no evidence that the precharge delay may have had an effect on the right to full answer and defence. Finally, the prosecution concludes his submission, stating that the evidence demonstrates that the matter in
Page 10 of 19 this case has proceeded as expeditiously as the circumstances permitted, in light of the complexity and seriousness of this matter.
[42] With regard to the legal analysis, the defence alleges that Captain Khan's rights were infringed under section 7 and 11(b) of the Charter. The court will deal firstly with section 11(b), and proceed further with its analysis under section 7.
ANALYSIS [43] Section 11(b) of the Charter states: Any person charged with an offence has the right ... ... to be tried within a reasonable time; [44] This section of the Charter has brought, over the years, a fair number important decisions by our courts, including the Supreme Court of Canada, but also of the Court Martial Appeal Court.
[45] The primary purpose of section 11(b) is the protection of the individual rights of accused. A secondary interest of society as a whole has, however, been recognized by the Supreme Court of Canada. The individual rights, which the section seeks to protect, are: first, the right to security of the person; two, the right to liberty; and three, the right to a fair trial.
[46] The right to security of the person is protected in section 11(b) by seeking to minimise the anxiety, concern, and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimise exposure to the restrictions of liberty that result from pretrial incarceration and restrictive bail conditions. And the right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.
[47] The secondary societal interest is most obvious when it parallels that of the accused. Society, as a whole, has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect, trials held promptly enjoy the confidence of the public.
[48] There is, as well, a societal interest that is, by its very nature, adverse to the interest of an accused. In Conway, a majority of judges in the Supreme Court of Canada recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov in the reasons of Justice Cory, as he then was, who referred to a collective interest in ensuring that those who transgress the law are
Page 11 of 19 brought to trial and dealt with according to law. As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial. The role of this interest is most evident, and its influence most apparent, when it is sought to absolve persons accused of serious crimes simply to clean up the docket.
[49] In R. v. Morin [1992] 1 S.C.R. 771, which is also reported at 71 C.C.C.(3d) 1, Madam Justice McLachlin, as she then was, provided additional elements that provide guidance in assessing the interests that a court has to balance. At page 809 of the Supreme Court Reports, she said, and I quote:
It is easy, in considering that factors which can bear on that determination, to lose sight of the true issue at stakeSSthe determination of where the line should be drawn between conflicting interests. On the one hand stands the interest of society in bringing those accused of crimes to trial, of calling them to account before the law for their conduct. It is an understatement to say that it is a fundamental and important interest. Even the earliest and most primitive of societies insisted that the law bring to justice those accused of crimes. When those charged with criminal conduct are not called to account before the law, the administration of justice suffers. Victims conclude that justice has not been done and the public feels apprehension that the law may not be adequately discharging the most fundamental of its tasks.
On the other side of the balance stands the right of a person charged with an offence to be tried within a reasonable time. When trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice.
[50] Further to its decisions in Mills, Conway and Askov, the Supreme Court of Canada provided guidelines in applying the factors to be considered in assessing unreasonable delay. Mr Justice Sopinka, as he then was, for the majority, stated, in Morin at page 787 of the Supreme Court Reports, and I quote:
The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra, "[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?" ... While the court has at times indicated otherwise, it is now accepted that the factors to be considered in analysing how long is too long may be listed as follows:
Page 12 of 19 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (a) inherent time requirements of the case, (b) actions of the accused, (c) actions of the Crown, (d) limits on institutional resources, and (e) other reasons for delay; and 4. prejudice to the accused. These factors are substantially the same as those discussed by this court in Smith, supra at p. 1131, and in Askov, supra, at pp. 1231-32.
[51] In Morin, Madam Justice McLachlin made additional comments about the factors to be considered and the process to be followed by a court in determining whether or not to grant the remedy of a stay of proceedings. At pages 810-811, she said:
The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused's interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial.
[52] Further, she says: In my opinion, the task of a trial judge considering an application for a stay of charges may usefully be regarded as falling into two segments. The first step is to determine whether a prima facie or threshold case for unreasonable delay has been made out.
[53] And then she continues: If this threshold or prima facie case is made out, the court must proceed to a closer consideration of the right of the accused to a trial within a reasonable time, and the question of whether it outweighs the conflicting interest of society in bringing a person charged with a criminal offence to trial. The question is whether, on the facts of the particular case, the interest of society in requiring the
Page 13 of 19 accused person to stand trial is outweighed by the injury to the accused's rights and detriment to the administration of justice which a trial at a later date would inflict.
[54] As noted by the Supreme Court of Canada in R.v. MacDougall (1998), 128 C.C.C.(3d) 483 at page 499, paragraph 41 of the decision:
The analysis must not proceed in a mechanical manner. The factors and framework set out in Askov and Morin are not immutable or inflexible. As noted by L'Heureux-Dubé ... in Conway, ... the list of factors can never be exhaustive.
[55] In this perspective, this court adopts, as the military judges who presided at the Standing Courts Martial in R. v. Byrne and R. v. Young did, the court adopts the process suggested by the Newfoundland Court of Appeal in R. v. Reid (1999) N.J. No. 47, and it's published in QuickLaw, to be appropriate when a trial judge hears an application under section 24(1) of the Charter for a stay of proceedings on the basis that an accused's right under 11(b) to be tried within a reasonable time has been infringed. At page 12 of that decision, Chief Justice Wells, for the majority, proposed that a judge should:
(1) First consider the length of the delay, evaluate it in the light of other factors and come to a conclusion as to whether such a period of delay raises an issue of reasonableness, bearing in mind that the burden of establishing such a Charter violation rests with the applicant. If the length of time involved is not exceptional bearing in mind what might reasonably be expected in the case of such a charge, then no issue as to reasonableness is raised and that is the end of the matter.
(2) If the period of delay is such as to raise an issue of reasonableness then further inquiry is warranted.
(3) If there is an allegation that the accused waived any portion or portions of the delay, the burden of establishing which rests with the Crown, the judge must deduct from the total period of delay that portion or portions in respect of which the judge finds the accused in fact waived s. 11(b) Charter rights.
(4) If the net period of time remaining after deducting the period or periods in respect of which the court found the accused waived s. 11(b) Charter rights is still unreasonable, then the court continues with the inquiry and considers any other explanations for the delay including (a) inherent time requirements of the case, (b) actions of the accused, (c) actions of the Crown, (d) limits of institutional resources, and (e) any other reasons for the delay.
Page 14 of 19 (5) If, after taking account of the explanations, the delay period remains apparently unreasonable the judge must determine whether or not there was any prejudice to the accused as a result of the delay.
(6) If there was prejudice to the accused the judge must determine whether the prejudice was to such a degree as to outweigh the prejudice to society that would result if the accused were not to stand trial on the charges.
[56] Now, applying these principles to this case. One: The length of the delay. This factor requires the court to examine the period from the charge to the end of the trial, including sentencing. In the military justice system, a charge is laid when it is reduced to writing in Part 1 of the Record of Disciplinary Proceedings and signed by a person authorised to lay charges. In this case, Major Joy was such a person and she signed a Record of Disciplinary Proceedings on 16 July 2003, and the court is satisfied that the post-charge delay starts on that date.
[57] As to the pre-charge delay, it may, in certain circumstances, have an influence on the overall determination as to whether post-charge delay is unreasonable, but of itself, it is not counted in determining the length of the delay. This was confirmed by the Supreme Court of Canada in R. v. Finn (1997), 112 C.C.C. (3d) 288, where the court agreed on that issue with the reasons of Mr Justice Marshall from the Newfoundland and Labrador Court of Appeal, and that was published in 106 C.C.C. (3d) 43. And this principle has been recognized by the Court Martial Appeal Court in the recent decisions of Perrier and Larocque. The decision of the CMAC in Langlois, dealt only with section 7 of the Charter and, therefore, the court will address that particular decision when considering the alleged violation of the accused's section 7 rights.
[58] In light of the totality of the evidence before the court, the court considers that the pre-charge delay should not be counted in determining the length of the post-charge delay in this case. Although defence counsel tried to establish a parallel between this case and the case of Perrier, it is my decision that the circumstances of both cases are too different to establish a parallel. In Perrier, the military judge explained that in his calculation of 24 months, he was taking into account the 17 months from the end of the police investigation to the indictment, which he added the six months subsequent to the indictment. And, in addition, he stated, that owing to Perrier's suspension from his military duties, a suspension that strongly resembled an indictment in the circumstances, according to him, the initial delay was to run from the date of the suspension. The three periods together in Perrier constituted, he said, a breach of the rights under section 7, adding an ancillary conclusion about section 11(b) of the Charter. It is important to note that, in Perrier, the accused had confessed his liability at the
Page 15 of 19 first opportunity, suspended from duty, and did not receive any military pay for the whole period.
[59] The facts of this case do not support the proposition that Captain Khan's precharge situation is comparable, in any way, shape, or form, to the Perrier case. The defence argued as well, that a pre-charge delay should be counted in assessing the section 11(b) analysis in light of the CMAC decision in R. v. Larocque. The court can only infer that the defence analogy is based on the fact that, in Larocque, the investigator testified at trial that on 21 October '98 he considered that his investigation was essentially complete, and the fact that the charges were not laid before November '99. There again, this case must be distinguished for the purposes of determining if the pre-charge delay had an influence on the overall determination as to whether post-charge delay is unreasonable. As expressed by Mr Justice Létourneau in Larocque, at paragraph 21, and I will quote in French since the defence counsel gave a French copy of that decision to the court:
... Il ne s'agissait pas d'une accusation complexe et la preuve reposait essentiellement sur la ... plaignante.
[60] This is not the case here as the evidence of Mr Walsh and Chief Petty Office 2nd Class Tremblay would be relevant and material to the charges before the court. In consequence, this court is satisfied that the delay for the purposes of section 11(b) is nine months. A delay of nine months could be excused in suitable circumstances, but this court considers that such a delay is sufficient to raise an issue of reasonableness. As this court has concluded that the period of the delay is such as to raise an issue of reasonableness, the inquiry into this delay will continue.
[61] The court is satisfied that the accused did not waive any portion or portions of the delay. In consequence, the delay remains unchanged and the court will continue with the inquiry and consider any other explanation for the delay including: the inherent time requirements of the case; the actions of the accused; the actions of the Crown; the limits of institutional resources; and any other reasons for the delay.
[62] Some delay is an inherent component of any justice process, including the military justice process. In this case, what were the causes of the delay, and do the explanations justify the delay, having regard to the circumstances? And there's extensive evidence on that aspect before the court. Dealing with the inherent time requirements of the case: All offences have certain inherent time requirements which inevitably lead to delay. The complexity of the trial is one requirement which has often been mentioned, and the more complicated a case, the longer it will take counsel to prepare for a trial and for the trial to be conducted once it begins. Account must also be taken of the fact that counsel for the prosecution and defence cannot be expected to devote their time exclusively to one case, and, as stated by the Supreme Court, the amount of time that should be allowed counsel is well
Page 16 of 19 within the expertise of trial judges. But inherent time requirements for a case are not strictly restrictive to complexity of cases.
[63] In the present case, the evidence is to the effect that this case was not a very complex one, but that witnesses had to be located and interviewed. The evidence indicates that the investigator had no authority to lay charges, and the case had to be referred to unit authorities for any further action. The disciplinary authority of the officer commanding the dental unit detachment in Halifax raised a legal issue that required a legal review that ultimately led to amendments of the unit standing orders, so that issue was a genuine issue. At the same time, the nature of the investigation and the status of the military police investigation required both a pre-charge and post-charge review by the unit legal advisor. The matter had to be forwarded to the referral authority; that is, ADM(HR-Mil) in Ottawa, who consulted the higher echelons of the Canadian Forces Medical Services Group and the Director General Health Services, and it is, in the court's view, totally appropriate in the disciplinary justice system. The matter was then referred, according to the regulations, to the Director of Military Prosecutions, who preferred the charges on 23 January 2004.
[64] With regard to the actions of the accused: This aspect of the reasons for the delay should not be read as putting the blame on the accused for certain portions of that delay. There's no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which may have caused a delay and contributed to delay. In this case, or in the case at bar, this court finds that the accused is responsible for the delay starting on 16 March to 14 April 2004. Defence counsel requested that the trial proceed during the week of 19 April 2004 as he was unavailable before that date because he had, already, three trials scheduled in March, and also that he had an important medical appointment. The prosecution was available to proceed and a judge was also available to hear the case. In these circumstances, the delay must be imputed to the accused in these circumstances.
[65] Actions of the prosecution: As with the conduct of the accused, this factor does not serve to assign blame. This factor simply serves as means whereby actions of the prosecution which delay the trial may be investigated. The evidence indicates that the unit legal advisor provided legal advice as well as mandatory pre-charge and post-charge review. The evidence also indicates that the unit legal advisor acted diligently, as well as those involved in this case starting from the person who laid the charges, up to and including ADM(HR-Mil). As to the Director of Military Prosecutions, there again, he acted promptly and diligently as soon as this file was referred by ADM(HR-Mil) in October 2003. This has to be differentiated from the situation where the investigator has authority to lay charges and where the discretion of an accused's chain of command up to and including the referral authority, in these situations, is more limited.
Page 17 of 19 [66] Turning now to the limits of institutional resources, the court is satisfied that the resources were sufficient and that any limits on these resources did not contribute to the delay. And in the case at bar, there is no evidence that would fall into the category of any other reason for delay. The court, having taken into account the explanations put forward by the prosecution as it appears from the testimony from Major Hedley, as well as Exhibits VD1-1, -6 and -7, in light of the policy directives marked as VD1-4 and -5, and the mandatory requirements imposed on various actors within the disciplinary process, not only in Chapter 107 of the QR&Os, but also in Chapter 108, 109 and 110 of the QR&Os, the court is satisfied that a delay of 8 months; that is, a delay of 9 months, less one month which must be imputed to the actions of the accused; namely, the actions of his counsel with regard to his unavailability to proceed during the week of 16 March 2004, is at the higher limit of what should be considered reasonable in the circumstances. Therefore, the court does not have to pursue its inquiry beyond that.
[67] In the judicial process under section 11(b), which is referred to as a balancing, this court has examined the length of the delay, and in light of the other factors, having considered the legal principles and applied the evidence to those principles, this court concludes that the period of delay is not unreasonable.
[68] With respect to the second portion of this application in which the defence argued that Captain Khan's right to life, liberty and security under section 7 of the Charter have been violated, and that a stay of proceedings should be granted as a remedy, this court is not satisfied that it is supported by the evidence. The court is satisfied that the investigation was not, for all intents and purposes, completed in August 2002, but rather, it was in May 2003. In the most favourable scenario for the accused, the investigation could not have been completed before 13 March 2003; that is, the date where the military police in Toronto forwarded to Sergeant Hallett the information obtained from Chief Petty Officer 2nd Class Tremblay, further to Sergeant Hallett's request for assistance. The facts of this case can be distinguished of those in Larocque. Moreover, it must be kept in mind that the majority in Larocque was not satisfied, despite the facts, that the accused's rights under section 7 had been violated.
[69] This court has already distinguished this case with R. v. Perrier, where the accused had been suspended from duties from the very beginning of the investigation, had suffered financial loss, and had been stigmatised because of the actions taken by his unit. As expressed previously, Captain Khan has never been suspended from duty, never been arrested, nor was he put in custody, and he was never imposed any restriction on his liberty. He has been employed continuously in a position corresponding to his rank and experience and paid accordingly, with all the benefits that this entails.
Page 18 of 19 [70] In the criminal context, state interference with bodily integrity and serious state-imposed psychological stress constitute a breach of an individual's security of the person. In this context, security of the person has been held to protect both the physical and psychological integrity of the individual. And not all state interference with an individual's psychological integrity will engage section 7. Where the psychological integrity of a person is at issue, security of the person is restricted to serious state-imposed psychological stress.
[71] First, the psychological harm must be state-imposed, meaning that the harm must result from the actions of the state, and second, the psychological prejudice must be serious. In order for security of the person to be triggered in this case, the impugned state action must have had a serious and profound effect on the respondent's psychological integrity. The court must infer from the defence submission that the evidence, according to the defence, would demonstrate a grave and profound impact on the accused's physical and emotional health as well as a grave and profound impact on his professional career as a dental officer in the Canadian Forces, although he was not clear on that aspect.
[72] In applying these principles, or the principles set out by the Supreme Court of Canada in Blencoe v. British Columbia (Human Rights Commission) [2000] 2 S.C.R. 307, and in light of the Court Martial Appeal Court decision in Langlois, this court is not satisfied that Captain Khan's right to security under section 7 has been violated. That is not to say that the anxiety and the stress that he has endured until now is not real. They are certainly related to the reality of being a suspect and ultimately being accused on fraud related charges, especially when one is an officer. The court has already expressed the view that his stress and anxiety certainly contributed to a somewhat regrettable behaviour during his testimony before the court in this voir dire, however, the evidence before this court is not sufficient to establish that the impugned actions of the state had a serious and profound effect on Captain Khan's psychological integrity with respect to his personal and professional life within the ambit of section 7 of the Charter.
CONCLUSION [73] Therefore, the court concludes that Captain Khan's rights under section 7 have not been violated, and for these reasons, this portion of the defence application as it relates to section 7 of the Charter is also denied.
LIEUTENANT-COLONEL M. DUTIL, M.J. Counsel:
Page 19 of 19 Major R. Holman, Director Military Prosecutions Atlantic Lieutenant(N) G.M. Connor, Deputy Judge Advocate Halifax, Assistant Prosecutor Counsel for Her Majesty The Queen Major J.D.M. Côté, Directorate of Defence Counsel Services Counsel for Captain Khan