Page 1 of 8 Citation: R. v. Corporal R.D. Grant, 2006 CM 11 Docket: C200611 STANDING COURT MARTIAL CANADA ONTARIO CANADIAN FORCES BASE KINGSTON Date:1 June 2006 PRESIDING:COMMANDER P.J. LAMONT, M.J. HER MAJESTY THE QUEEN v. CORPORAL R.D. GRANT (Accused) DECISION RESPECTING A PLEA IN BAR OF TRIAL BROUGHT UNDER THE QUEEN'S REGULATIONS AND ORDERS SUBPARAGRAPH 112.05(5)(b) AND 112.24 ALLEGING A VIOLATION OF THE RIGHTS GUARANTEED BY SECTION 7 AND SECTION 11(b) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS AND ASKING THE REMEDY UNDER SECTION 24(1) OF THE CHARTER. [1] Corporal Grant is charged with one offence of assault causing bodily harm, contrary to section 267 of the Criminal Code, a service offence by reason of section 130 of the National Defence Act. [2] At the opening of his trial by Standing Court Marital, and prior to plea, he applies for a stay of proceedings under section 24 (1) of the Canadian Charter of Rights and Freedoms, alleging an infringement of the rights guaranteed by section 7 to the security of the person, and by section 11(b) to a trial within a reasonable time. [3] The applications are brought by way of a plea in bar of trial under Queen's Regulations and Orders article 112.05(5)(b) and 112.24, alleging that, by reason of the Charter breaches alleged, the court does not have jurisdiction. [4] At the conclusion of the addresses of counsel, I dismissed the application based upon section 11(b) of the Charter. With respect to the application under section 7, I reserved my ruling on the application pending the completion of the evidence because
Page 2 of 8 the applicant relied, in part, upon an argument that his right to a fair trial was infringed by the pre-charge delay. I undertook to provide reasons for these rulings in due course. These are those reasons. [5] I have now heard all the evidence to be offered by the prosecution and the defence on this trial. In my view there is no unfairness caused to the applicant by reason of the lapse of time from the time of the alleged offence, on or about 16 April 2004, until the applicant was charged on 21 April 2005. I am also satisfied that the precharge delay in this case did not have a serious or profound effect on the psychological integrity of the applicant. As a result, and for the reasons that follow, the application under section 7 of the Charter is also dismissed. [6] The relevant time periods are set out, for the most part, in the Agreed Statement of Facts, Exhibit M1-3. In summary: The alleged offence date is 16 April 2004. Leading Seaman Sonnenburg completed his investigation in reasonably short order, but it appears that more senior police members required that a photograph line-up be prepared and administered to at least one witness. This was accomplished in June of 2004. On 22 December 2004 a military police investigation report was forwarded to the applicant's unit. A charge report containing one charge of assault causing bodily harm was laid on 21 April 2005 and the accused elected to be represented by legal counsel from the Directorate of Defence Counsel Services. On 29 June, the base commander of CFB Petawawa applied for disposal of the charge. The matter was referred to the Director of Military Prosecutions and on 27 September 2005 a charge sheet was signed by the prosecutor charging the offence of assault causing bodily harm. Thereafter the Office of the Court Martial Administrator, on 30 September 2005, appears to have attempted to set trial time. Because of limited judicial resources the Deputy CMA set a trial date of 11 April 2006. The same date, that is, 30 September, counsel for the accused advised that he was no longer representing Corporal Grant. New counsel, Captain Weigelt, advised on 4 October that he might have to adjourn another trial in order to accommodate the 11 April date. The DCMA appears to have interpreted this as an indication that the date of 11 April 2006 was not convenient to defence counsel. There was a further exchange of correspondence among counsel and the DCMA. Then on 27 January 2006 the DCMA advised that a potential trial date of 28 February had become available. Defence counsel replied to this message reiterating his earlier advice that he was not available in February because of other court commitments and a pressing personal matter. Thereafter, the week of 24 April became available for this trial, the DCMA advised counsel, and defence counsel advised that he was agreeable to a trial date of 26 April 2006. [7] I repeat what I said in the case of ex-Private Powers, a case in which similar applications, based upon sections 7 and 11(b), based upon delay in bringing a matter to trial by court martial were made. And I quote: "While the facts underlying this application may relate to both the section 7 and the section 11(b) rights, in my view it is of cardinal importance that the Charter guaranteed rights in sections 7 and 11(b) be
Page 3 of 8 separately examined. While the values protected by these right overlap to some extent, they are not identical, and the analytical framework for these two rights is very different and distinct. Also, the appropriate remedy may well be different depending on which of these rights may have been infringed or denied." [8] Section 7 of the Charter reads: 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. This provision was before the Supreme Court of Canada in Blencoe v. British Columbia [2000] 2 S.C.R., 307. At page 344 Justice Bastarache stated: ... Where the psychological integrity of a person is at issue, security of the person is restricted to "serious state-imposed psychological stress" ... [9] As I have already stated, I am not persuaded by the evidence and argument on this application that there has been any serious and profound effect on the psychological integrity of the applicant by reason of state action or inaction in this case. [10] It is clear that the applicant was suffering from depression at the time of the alleged offence, but there is no evidence to suggest that his condition worsened over time, and certainly no suggestion that any change for the worse in his condition was a result of state action. [11] The applicant also argues that pre-charge delay caused by tardiness in the delivery of the military police report and tardiness of the unit in laying a charge has infringed the section 7 right. [12] It appears that the investigators thought it advisable to administer a photograph line-up to possible witness which, as I stated, occurred in June of 2004. In addition, there was some delay caused by the requirement to obtain legal advice on the suitability of proposed charges. [13] It is argued that charges should be laid as soon as the investigators have formed reasonable grounds to believe an offence has been committed. In my view there is no authority for this as a proposition of law. [14] Although such a rule may apply in situations where the military police have effected an arrest of the accused 1 there was no arrest or other infringement of the 1 R. v. Larocque [2002] C.M.A.C. 438, per Justice Létourneau para 17
Page 4 of 8 liberty or security interests of the applicant in the present case until the time he was charged. [15] As Justice Létourneau held in R. v. Larocque, in the military context, the section 7 right may be infringed by undue delay in bringing the accused to trial by court martial after the pre-charge imposition of administrative measures such as arrest, changes to employment duties, suspension without pay, and restrictions on movement, and in such cases an appropriate remedy can be granted. But where, as in this case, the remedy sought is a stay of proceedings, the applicant must demonstrate impairment of the right to a fair trial or the ability to make full and defence. [16] There is no evidence in this case of any administrative measures imposed upon the accused as a result of the incident that gives rise to the charge. In addition, I have now heard all the evidence in the case, and in my view there is simply no basis upon which to conclude that delay in the investigation or in the laying of a charge has impaired the right to a fair trial that would justify the stay of proceedings the applicant seeks as a remedy. [17] There has been no infringement or denial of the right of the applicant under section 7 of the Charter and the application under section 7 is dismissed. [18] Defence counsel further submits that there has been an abuse of process by reason of neglect in proceeding promptly with an investigation and charges. In my view the abuse of process doctrine, in this context, is co-extensive with the right guaranteed in section 7. For the reasons I have already given I conclude that there has been no abuse of process. [19] As regards, the application under section 11(b), in the case of Bombardier Wolfe, in a ruling I delivered in Gagetown on 24 August 2005, I stated: [10] The Canadian Charter of Rights and Freedoms provides in section 11(b): 11. Any person charged with an offence has the right ... (b) to be tried within a reasonable time; Section 11(b) protects the interests of accused persons by advancing the rights to liberty, to security of the person, and to make full answer and defence. As well, Canadian society as a whole has an important interest in seeing that criminal prosecutions are dealt with without undue and unreasonable delay. [11] In R. v. MacDougall, [1998] 3 S.C.R. 45, McLachlin J, as she then was, delivered the judgement of the Supreme Court of Canada. At paragraph 29, she wrote:
Page 5 of 8 The right to security of the person is protected by s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pretrial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh. And at paragraph 30 ... The societal interest protected by s. 11(b) has at least two aspects.... First, there is a public interest in ensuring a speedy trial, so that criminals are brought to trial and dealt withSSpossibly through removal from the communitySSas soon as possible. Second, there is a public interest in ensuring that those on trial are dealt with fairly and justly. This societal interest parallels an accused’s “fair trial interest”. [12] The right to trial within a reasonable time arises at the time a charge is laid, but it is obvious that no trial can proceed immediately upon charges being laid. Both parties will require some time to marshal the evidence for presentation to the court, to consider their respective positions, and to bring any pretrial [sic] proceedings that may be thought necessary. In addition, of course, a court system must be in a position to accommodate the hearing of the trial with the necessary physical facilities and personnel, including a judge. All these matters take time and, therefore, cause delay. The Charter does not mandate that there be no delay between charges and trial, only that any such delay be “reasonable”. [13] What is meant by the term “reasonable time” in this context? The Supreme Court of Canada has set out the analytical framework. There are four principal factors that the court must examine and consider to determine whether, in a particular case, the time taken to move a case to trial is unreasonable. [These factors] are: 1. The length of the delay from the time charges are laid until the conclusion of the trial; 2. Waiver of any periods of time; 3. The reasons for the delay; and 4. Prejudice to the accused. In its consideration of the reasons for delay, the court must look at: 1. The inherent time requirements of the case; 2. The actions of the accused and of the prosecution; 3. Limits on institutional resources; and 4. Any other reasons for delay.
Page 6 of 8 [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. [16] These principles developed in Canadian civilian courts, but they apply equally to military cases under the Code of Service Discipline contained in the National Defence Act. [20] The period of post-charge delay in the present case begins with the laying of the charge on 21 April 2005 until the trial opened on 26 April 2006, almost exactly a period of 12 months. The prosecution concedes, properly in my view, that this is a period of time that requires the court to examine the remaining factors set out by the Supreme Court of Canada in R. v. Morin, [1992] 1 S.C.R. 771. [21] The prosecution also concedes that the applicant has not waived any of the time taken to bring the matter to trial. In my view the main reasons for the delay to trial in this case were the unavailability of judicial resources and the schedule of defence counsel. [22] In argument, Captain Weigelt, advised that he is a Reserve Force lawyer with a busy civilian practice, and as such he requires two to three months notice in order to fit a week-long trial into his schedule. I infer from this that the defence was not ready to proceed to trial until, at the earliest, mid-December of 2005. Judicial resources were not available to accommodate the trial at that time until the spring of the following year. It is also apparent that some effort was made to schedule this trial earlier than April of 2006, but for reasons that must have been sufficient to defence counsel the offer of earlier trial time was not accepted. [23] There is no evidence to suggest that the defence notified the prosecution or the Court Martial Administrator that they were not content with the proposed time frame for trial of April 2006. Of course, it is the obligation of the prosecution to bring the accused to trial within a reasonable time and there is no obligation on the defence, but it seems to me that the failure of counsel to alert the interested parties as to his concern about the lapse of time is a factor the court should consider in assessing the reasons for delay. [24] As far as prejudice is concerned, the applicant submits that, by reason of the delay in the investigation and charging process, he has been denied the opportunity to elect for a summary trial before his commanding officer on this charge. But even if the charge had been laid in time, the applicant would enjoy the right to elect only if the
Page 7 of 8 commanding officer decided that the matter should not proceed by court martial. In my view it is speculative to suppose that a charge of this nature would have proceeded by way of summary trial, with an election available to the accused to proceed by way of summary trial. [25] He stated that his whole unit knows about this matter, he has seen the people involved in this case on other occasions, and this causes him stress and nausea. The applicant testified that he felt quite stressed and physically ill when he was originally contacted by the military police in the course of their investigation. He declined to be interviewed by the police. He was being treated for depression at the time and was suffering from injuries to his knee and back. He consulted a military nurse on 15 April 2004 to deal with depression, and apparently was feeling better by early March of 2005, as he was recovering from his injuries. He took himself off a course to be held in September of 2004 because of the investigation. [26] It is submitted by counsel that the court should tolerate less prejudice in a simple case such as this case. In my view the complexity of the case is a matter to be analysed when dealing with the inherent time requirements of the case, and is not very relevant to the consideration of prejudice. But more importantly, the prejudice of which the applicant complains is, in my view, attributable to the fact that he was charged and not to excessive delay in disposing of the charge. [27] I consider that the legal prejudice established in this case is no more than minimal. [28] In the case of ex-Corporal Chisholm I referred to a passage in the judgment of Justice Sopinka delivering the judgement of the Supreme Court of Canada in R. v. Morin, at page 787, and I quote: [A] 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. [29] In this case the applicant seeks a remedy by way of a stay of proceedings; that is, a judicial determination that a prosecution should not proceed to a determination of guilt or innocence. In the same case of Morin Justice McLaughlin, as she then was, stated as follows, and I quote: It is easy, in considering the 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 this is a fundamental and important interest. Even the earliest and most primitive of societies insisted that the law bring to justice those accused of
Page 8 of 8 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, witness disappear. The quality of evidence may deteriorate. Accused persons may find their liberty [or] 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. 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. [30] It cannot be doubted that society has a large interest in the adjudication on the merits of a charge involving an allegation of violence against a member of the Canadian Forces alleged to have been committed at the hands of another member. In my view, the delay involved in this case is more than should usually be tolerated, and calls for an explanation. But given the actions of the accused and counsel's busy schedule, the time to trial is not significantly longer than the period of nine months that counsel considers is the period of institutional delay to be expected at court martial. [31] I consider that the prejudice suffered by the accused is minimal. On balance I am not satisfied that the applicant has established an infringement of the right to trial within a reasonable time. The application under section 11(b) was accordingly dismissed. COMMANDER P.J. LAMONT, M.J. Counsel: Major A.M. Tamborro, Directorate Military Prosecutions Counsel for Her Majesty The Queen Captain N.H. Weigelt, Directorate of Defence Counsel Services Counsel for Corporal R. D. Grant Lieutenant-Colonel D. T. Sweet, Directorate of Defence Counsel Services Co-Counsel for Corporal R.D. Grant
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.