Forsyth v. Canada (Attorney General) (T.D.) [2003] 1 F.C. 96
Date: 20020605
Docket: T-2377-00
Neutral citation: 2002 FCT 643
BETWEEN:
B51 641 513 PRIVATE THOMAS JOHN FORSYTH
Applicant
and
THE ATTORNEY GENERAL OF CANADA AND
LIEUTENANT-COLONEL ALAIN MÉNARD in his
capacity as military judge
Respondents
INTRODUCTION
[1] These reasons arise out of an application for judicial review of an interlocutory decision of Lieutenant-Colonel Alain Ménard, the presiding Military Judge at a Standing Court Martial convened to consider a charge preferred against Private Thomas John Forsyth (the "Applicant") in a charge sheet dated the 28th of April, 2000. The charge detailed in the charge sheet is in the following terms:
AN OFFENCE PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT THAT IS TO SAY, ASSAULT CAUSING BODILY HARM CONTRARY TO SECTION 267 OF THE CRIMINAL CODE
Particulars: In that he on or about 1 July 1999, at 7 Fowlers Court, at or near Combat Training Center Gagetown, Oromocto, New Brunswick did in committing an assault upon Kerri Kephart cause bodily harm to her.[1]
[2] The particular decision under review[2] is the denial of a motion brought before Lieutenant-Colonel Alain Ménard (the "Military Judge") at the commencement of the trial seeking a determination that the Standing Court Martial had no jurisdiction to try the accused. The Military Judge denied the application. The decision of the Military Judge that is under review was delivered on the 30th of November, 2000.
BACKGROUND
[3] The factual background to the charge against the applicant and the issue before the Military Judge leading to the decision here under review are described in the reasons for decision of the Military Judge in the following terms:
The facts, as they relate to this application, can be summarized as follows: On July 1st, 1999, the accused lived at 7 Fowlers Court, Oromocto, New Brunswick, with his girlfriend Kerri Kephart. Late on 1 July 1999 the RCMP were called to a domestic dispute at their residence. The RCMP removed the accused from his residence and arrested him. He was taken to the RCMP station in Oromocto and incarcerated in the RCMP holding cells. He was released from custody approximately nine hours later when Sergeant Guillena attended at the RCMP holding cells. The accused was released on an undertaking and a promise to appear in Court. At his girlfriend's request, the undertaking was cancelled on or about 9 July 1999. The accused and his girlfriend separated and Ms Kephart moved back to the Province of Alberta. On 9 August 1999, the accused was charged with common assault under section 266 of the Criminal Code. On that day, he appeared in Court with his defence counsel. His case was adjourned until 23 August 1999. On 23 August 1999, a not guilty plea was entered and the trial was scheduled for 24 November 1999. On 24 November 1999, after consultation with the defence counsel, the provincial prosecutor asked for the charge to be withdrawn and the Court withdrew the charge.
On or about 24 January 2000, a Record of Disciplinary Proceedings was served to the accused indicating that a charge of assault causing bodily harm had been laid against him. On 17 February 2000, the referral authority recommended to the Directorate of Military Prosecutions that the charge be proceeded by Standing Court Martial. On 28 April 2000, the Directorate of Military Prosecutions preferred the charge and on 18 October 2000, the Court Martial Administrator convened this court martial.
The fact that both the civilian justice system and the military justice system had a concurrent jurisdiction to bring the accused to trial is not in dispute in this case. The matter to be determined is the following: Has the military justice system lost his [sic] jurisdiction over this matter by letting the civilian justice system proceed with the prosecution of the accused to the point of withdrawing the charge after the time a not guilty plea had been entered? I will answer by the negative.[3]
[4] Additional factual background worthy of note is as follows. On the day the civilian charge against the Applicant was withdrawn, the 24th of November, 1999, Ms. Kephart, the only witness to the alleged assault, was not in Court. She had not been subpoenaed. Despite the fact that the Crown had offered to cover her expenses to travel from her home in Alberta, to appear at the trial, she declined to voluntarily appear. The Applicant and his defence counsel were aware that Ms. Kephart was not available to testify. Finally, Crown counsel was aware that, if the civilian charge against the Applicant were to be withdrawn, military justice officials would consider laying a military charge against the Applicant, with a view to seeking a carceral sentence if the Applicant were convicted. This information was not disclosed to the Applicant or his counsel by Crown counsel.
RELIEF REQUESTED
[5] The relief requested on behalf of the Applicant on this application for judicial review is set out in the Applicant's Notice of Application in the following terms:
1. A writ of prohibition or an order in lieu of a writ of prohibition directed to Lieutenant-Colonel Alain Menard, a Military Judge presiding at a Standing Court Martial at Canadian Forces Base Gagetown, New Brunswick, or any other Military Judge who may hold or sit in such Court, prohibiting the said Lieutenant-Colonel Alain Menard or any other Military Judge who may sit or hold in such Court from proceeding with the trial of the applicant upon a Charge Sheet dated 28 April 2000 alleging that he on or about 1 July 1999, at 7 Fowlers Court, at or near Combat Training Centre Gagetown, Oromocto, New Brunswick, did in committing an assault upon Kerri Kephart cause bodily harm to her, contrary to section 130 of the National Defence Act and section 267 of the Criminal Code.
2. Such further and other relief as this Honourable Court deems just.[4]
THE ISSUES
[6] The issues on this application for judicial review, paraphrased from the Applicant's Memorandum of Fact and Law[5] are the following:
1) Whether this Court has jurisdiction under section 18 of the Federal Court Act[6] to grant a writ of prohibition directed to a Military Judge presiding at a court martial.
2. Whether this application for a writ of prohibition is barred by section 18.5 of the Federal Court Act.
3. Whether a writ of prohibition should issue on the basis that the military justice system has lost jurisdiction.
4. Whether a writ of prohibition should issue on the basis that the second prosecution of the Applicant in the military justice system is an abuse of process.
RELEVANT STATUTORY LAW
[7] The definition "federal board, commission or other tribunal" in subsection 2(1) of the Federal Court Act, subsection 18(1) and section 18.5 of that Act are set out in Schedule I to these reasons. It was not in dispute before me that the Standing Court Martial as constituted and the decision of which is here under review is a "federal board, commission or other tribunal" within the meaning given to that expression in subsection 2(1) of the Federal Court Act. Further, it was not in dispute before me that section 28 of the Federal Court Act, as referred to in the opening words of subsection 18(1) of that Act, is not relevant for the purposes of this matter.
[8] Paragraph 60(1)(a), subsection 66(1), section 71, paragraph 130(1)(a) and the closing words of subsection 130(1), paragraphs 139(1) (c) to (l), and sections 162, 173 to 175, 230 and 230.1 of the National Defence Act[7] are set in Schedule II to these reasons.
ANALYSIS
1) Does this Court have jurisdiction under section 18 of the Federal Court Act to grant a writ of prohibition directed to a Military Judge in the circumstances here before the Court?
[9] The issue as stated in the foregoing subheading is essentially a restatement of the first issue identified on behalf of the Applicant. For the purposes of my analysis, I will combine it with a consideration of the second issue question stated on behalf of the Applicant, that is, whether or not the relief requested on behalf of the Applicant is barred by section 18.5 of the Federal Court Act. If, as I will conclude, this Court has jurisdiction and exercise of that jurisdiction is not barred by section 18.5, I will then turn to the question of whether or not this Court should exercise its discretion to grant a writ of prohibition, as requested on behalf of the Applicant, in all of the circumstances of this matter.
[10] As earlier indicated, section 28 of the Federal Court Act, as referred to in the opening words of subsection 18(1) of that Act, has no application on the facts of this matter. Thus, I am satisfied that the Trial Division has exclusive original jurisdiction to issue a writ of prohibition in the circumstances now before me if the Standing Court Martial presided over by the Military Judge whose decision is here under review is a "federal board, commission or other tribunal" as defined in subsection 2(1) of the Federal Court Act and if this Court's jurisdiction is not ousted by section 18.5 of that Act. For ease of reference, section 18.5 is repeated here:
18.5 Notwithstanding sections 18 and 18.1, where provision is expressly made by an Act of Parliament for an appeal as such to the Court, to the Supreme Court of Canada, to the Court Martial Appeal Court, to the Tax Court of Canada, to the Governor in Council or to the Treasury Board from a decision or order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act. [emphasis added]
18.5 Par dérogation aux articles 18 et 18.1, lorsqu'une loi fédérale prévoit expressément qu'il peut être interjeté appel, devant la Cour fédérale, la Cour suprême du Canada, la Cour d'appel de la cour martiale, la Cour canadienne de l'impôt, le gouverneur en conseil ou le Conseil du Trésor, d'une décision ou d'une ordonnance d'un office fédéral, rendue à tout stade des procédures, cette décision ou cette ordonnance ne peut, dans la mesure où elle est susceptible d'un tel appel, faire l'objet de contrôle, de restriction, de prohibition, d'évocation, d'annulation ni d'aucune autre intervention, sauf en conformité avec cette loi.
[je souligne]
[11] I am satisfied that, pursuant to section 230 of the National Defence Act, and particularly paragraph (b) of that section, the Applicant would have an appeal to the Court Martial Appeal Court from the legality of a finding of guilt made against him by the Standing Court Martial. One of the issues going to the legality of any such finding of guilt would be the jurisdiction of the Standing Court Martial, such jurisdiction being the precise issue determined by the presiding
Military Judge in the decision that is here under review.[8] But the foregoing conclusion begs the question of whether section 230, and particularly paragraph (b) of that section, constitutes a provision "expressly" providing for appeal for an appeal of the decision here under review.
[12] Section 230.1 of the National Defence Act provides for an appeal by the Minister where he or she questions the legality of any finding of not guilty by a Standing Court Martial, precisely the converse of the right of appeal granted to a person such as the Applicant by paragraph 230(b). Section 230.1 goes further: it provides a right of appeal to the Minister respecting the legality of any decision of a Standing Court Martial that "...terminates proceedings on a charge or that in any manner refuses or fails to exercise jurisdiction in respect of a charge". Such a decision would be the converse of the decision here under review which upholds the jurisdiction of the Standing Court Martial in respect of the charge against the Applicant. I am satisfied that this latter provision of section 230.1 constitutes an express provision made by an Act of Parliament for an appeal to the Court Martial Appeal Court that has no equivalent in section 230 of the National Defence Act in favour of a person such as the Applicant and, indeed, in any other provision of the National Defence Act or any other Act of Parliament to which I was referred.
[13] Contrasting the terminology of sections 230 and 230.1 of the National Defence Act, I conclude that the right of a person such as the Applicant to appeal from a decision such as that which is here under review to the Court Martial Appeal Court, as a component of a finding of guilt, as provided in section 230, is not express, but when contrasted with the terminology of section 230.1, is merely implied.
[14] The second question arising out of the terminology of section 18.5 of the Federal Court Act is, then, whether a Standing Court Martial such as that giving rise to the decision here under review is a "federal board, commission or other tribunal" within the meaning given to that expression in subsection 2(1) of the Federal Court Act. As earlier noted, that a Standing Court Martial is a "federal board, commission or other tribunal" was essentially not in dispute before me.
[15] In Glowczeski v. Canada (Minister of National Defence)[9], Mr. Justice Muldoon wrote at pages 284-5:
It hardly needs analytical demonstration that the National Defence Act, ... and the QR & O [Queen's Regulations and Orders for the Canadian Forces] are authentic "laws of Canada" within the meaning of section 101[of the Constitution Act, 1867], for the "better administration" of which this Court is established. Also, it hardly needs analytical demonstration that, in so far as they are "exercising . . . jurisdiction or powers conferred by or under an Act of Parliament" including regulations made under the authority thereof, the respondents are each "a federal board, commission or other tribunal" within the meaning of that expression under section 2 of the Federal Court Act. [citation omitted]
[16] More recently, in Rushnell et al v. The Attorney General of Canada et al[10], my colleague Mr. Justice Rouleau reached a substantially similar conclusion. At paragraphs 12 to 14 of his reasons, he wrote:
Upon consideration of the question, I find it is clear that the Federal Court, Trial Division, has the jurisdiction to hear an application for a writ of prohibition from an application [sic] facing charges in a Standing Court Martial procedure. Section 18 of the Federal Court Act clearly grants the Court this power. It is true that section 18.5 limits the scope of review to those matters for which an appeal before the Court Martial of Appeal [sic] already exists. However, it is my understanding that the National Defence Act does, in no way, allows [sic] for appeals before the Court Martial of Appeal [sic] of an interim decision. In fact, the grounds for appeals are quite limited, as can be ascertained by section 230 of that Act:
[quotation of section 230 of the National Defence Act omitted]
While it is true that on appeal, an accused will be free to raise the issue of reasonable apprehension of bias, section 230 in no way precludes this Court from exercising its supervisory role. In fact, the opposite conclusion would be constitutionally doubtful, as no other Court would be qualified to exercise a supervisory role on the Court Martial institution.
It is also clear from section 231 of the National Defence Act that the supervisory role of the Federal Court was preserved:
231. The right of any person to appeal from the finding or sentence of a court martial shall be deemed to be in addition to and not in derogation of any rights that the person has under the law of Canada.
231. Le droit d'interjeter appel
du verdict ou de la sentence de
la cour martiale est réputé s'ajouter,
et non déroger, aux droits personnels
reconnus par le droit canadien.
[17] I reach a similar conclusion here. I am satisfied that this Court's jurisdiction under section 18 of the Federal Court Act to provide the relief that the Applicant herein is seeking is not ousted by section 18.5 of that Act.
2) Should this Court exercise its discretion to grant prohibition?
[18] In MacKay v. Rippon[11], Mr. Justice Cattanach wrote at pages 245-6:
Prohibition, like all prerogative writs, is not granted as of right but upon judicial discretion exercised with great caution and forbearance for the furtherance of justice when other remedies are not available.
When lack of jurisdiction is apparent on the face of the proceedings prohibition will issue but where want of jurisdiction is not so apparent then the granting of prohibition is discretionary.
In my view such a lack of jurisdiction is not apparent in view of the plethora of decisions following the Drybones case.
It therefore seems to me that the question of want of jurisdiction should have been raised first as a plea in bar of trial before the Standing Court Martial as the applicants were entitled to do and did not choose to do so.
In the event of this having been done and the decision of the Standing Court Martial had been adverse to the applicants the questions of lack of jurisdiction would have been properly raised on appeal to the Court Martial Appeal Court and there is an appeal from the Court Martial Appeal Court to the Supreme Court of Canada. [emphasis added]
[19] The foregoing passage, together with an additional paragraph, was quoted by Mr. Justice Rouleau in his reasons in Rushnell[12]. My colleague took the position that it could not be relied on. At paragraph 11 of his reasons, he wrote:
I do not accept the respondents' arguments in this respect and do not believe that the above-cited case can be relied upon anymore. Both the National Defence Act and the Federal Court Act have been amended since the issuance of the MacKay decision. Furthermore, as is clear from the following passage, Cattanach, J.'s opinion was merely an obiter.
"However, as I have said, in view of the conclusion I have reached it is not incumbent upon me to consider the exercise of my discretion to grant prohibition and I do not do so in these instances. I do not do so because I do not wish my remarks to trammel any of my brother Judges who might be obliged to consider the exact question."
[20] With great respect to Mr. Justice Rouleau, I find the passage from Mr. Justice Cattanach's reasons, above quoted, to be both relevant and apt as it relates to the discretionary nature of the relief of prohibition, and also as to the "great caution and forbearance" that should be exercised before granting prohibition on the facts of a matter such as this "...where want of jurisdiction is not so apparent..." on the face of the decision under review.
[21] Section 162 of the National Defence Act, quoted in Schedule II to these reasons, makes it abundantly clear that a charge such as that now faced by the Applicant is to be dealt with as expeditiously as the circumstances permit. It was open to the Applicant, having challenged the jurisdiction of the Standing Court Martial to deal with the charge against him, and having had his challenge rejected, to allow the Standing Court Martial to proceed and, if he were found guilty, to appeal that finding of guilt on the ground that it was not legal by reason of want of jurisdiction. There was no evidence before me that his liberty interest was at issue pending final determination by a Military Judge or, indeed, pending final disposition of any appeal to the Court Martial Appeal Court. I am satisfied that such a course of action, and only such a course of action rather than the course of action that was here adopted, would have been consistent with section 162 of the National Defence Act.
[22] In David Bull Laboratories (Canada) Inc. v. Pharmacia Inc.[13], a case not cited before me, Mr. Justice Strayer, on facts and in a context very different from those before me, wrote at pages 596-7:
Thus, the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. This case well illustrates the waste of resources and time in adding on to what is supposed to be a summary judicial review proceeding the process of an interlocutory motion to strike. This motion to strike has involved a hearing before a trial judge and over one half day before the Court of Appeal, the latter involving the filing of several hundred pages of material, all to no avail.
While what is at issue on this application for judicial review is not the contesting of an originating notice of motion but rather a challenge to jurisdiction with respect to a Standing Court Martial, the issue of waste of resources to which Mr. Justice Strayer refers is very similar. The time taken in pursuit of this application for judicial review has been substantial. If my decision herein is appealed, significant further time will be involved. All of this is to be contrasted with the time that would have been required to proceed with the Standing Court Martial before a Military Judge, a proceeding which is to be dealt with expeditiously, and then to appeal the result in the event of a finding of guilt.
[23] Against the foregoing, I am satisfied that, on all of the facts of this matter, it would be contrary to the best interests of justice to grant prohibition in favour of the Applicant in contemplation that such a grant might then constitute a precedent for added complexity in the processes of the military justice system. I reach this conclusion having in mind my conclusions which follow regarding the questionable merits of this application.
[24] Counsel for the Applicant served notice of a constitutional question on the Attorney General of Canada and the attorney general of each province in accordance with section 57 of the Federal Court Act. A copy of the notice, together with proof of service, was filed in this Court on the 15th of November, 2001. In the Notice, the constitutional question was set out in the following terms:
The constitutional issue to be addressed in this case is the interface between the concurrent criminal law jurisdiction of the civilian justice system administered by the provinces pursuant to s. 92 (14) of the Constitution Act, 1867 and of the military justice system administered by military authorities pursuant to s.91(7) of the Constitution Act, 1867. The question to be determined is whether the civilian justice system's criminal law jurisdiction has primacy over the military justice system's criminal law jurisdiction. In other words, where the civilian justice system asserts criminal law jurisdiction over a matter, is the criminal law jurisdiction of the military justice system ousted? If this is not the case, does the Canadian Constitution permit a situation where there can be an unseemly competition between the civilian and military justice systems with each trying to assert its criminal law jurisdiction over a particular matter?
[25] Counsel for the applicant urged before me that the second prosecution of the Applicant, that is to say the prosecution in the military justice system, amounts to an abuse of process in that the conduct of the Crown, both Provincial and Federal, violated the Applicant's right to receive full and complete disclosure, impaired his right to make full answer and defence, and denied him the right to a trial within a reasonable time. Counsel further urged that the institution of a second prosecution against the Applicant offends the general policy that multiple proceedings over the same matter should be avoided.
[26] I find no merit in any of these arguments.
[27] The proceeding against the Applicant in the civilian justice system proceeded beyond the point where the Applicant entered a plea of not guilty and, indeed, proceeded to the point of trial. At that point, Crown counsel advised the Applicant and his counsel that he would be seeking a withdrawal of the charge and the Applicant and his counsel were aware that the Crown's principle witness, perhaps even the Crown's only witness, was not available to testify. There was no evidence before me that the Applicant or his counsel objected to a withdrawal. In fact, the evidence is to the contrary, notwithstanding that it should have been apparent to the Applicant's counsel, if not to the Applicant himself, that, if the charge against the Applicant were not withdrawn, the result would almost inevitably have been a dismissal of the charge for want of evidence.
[28] It was indeed unfortunate that Crown counsel did not disclose to the Applicant or his counsel, Crown counsel's knowledge that, if the charge in the civilian justice system were withdrawn, a charge might have been laid in the military justice system as indeed proved to be the case. But I am satisfied that this failure of disclosure was in no sense fatal: that is to say, that the failure of disclosure in no sense prejudiced the opportunity for the Applicant, through his counsel, to make full answer and defence to the charge against him in the civilian justice system. The reality is that the Applicant and his counsel were faced with a golden opportunity to obtain a dismissal of the charge against the Applicant which would have forever barred an equivalent charge being laid in the military justice system. That they failed to take advantage of this opportunity should not now be relied upon to bar exercise of the concurrent jurisdiction vested in the military justice system.
[29] I find no basis whatsoever, on constitutional or other grounds, to differ from the conclusion of the Military Judge reflected in the decision here under review that, in all of the circumstances of this matter, the military justice system has not lost jurisdiction to institute proceedings arising out of the alleged conduct of the Applicant which gave rise to the charge currently outstanding against him in the military justice system. Put another way, I find no basis on which to conclude that the concurrent jurisdiction of the military justice system, under the National Defence Act has been ousted by the procedure followed in the civilian justice system, leading ultimately to the withdrawal of the charge against the Applicant in that system.
[30] Further, I find no evidence before me on which to conclude that the conduct of Crown counsel and the conduct of military justice system authorities has given rise to an "unseemly competition" between the civilian and military justice systems, with each trying to assert, in some kind of competitive fashion, its jurisdiction arising out of the alleged conduct of the Applicant.
[31] Finally, I find no basis on which to conclude that the conduct of Crown counsel and of military justice system authorities has caused a delay that is of such unreasonable duration that to permit the charge in the military justice system to proceed to trial would bring the administration of justice in Canada into disrepute.
CONCLUSION
[32] Based upon the foregoing, this application for judicial review and for the grant of relief in the nature of a writ of prohibition will be dismissed.
COSTS
[33] Counsel for the Respondents urged that, in the event of success on the part of the Respondents, costs should go in their favour. Counsel for the Applicant noted that costs awards in criminal justice matters are extremely rare and an award simply is not warranted on the facts of this matter. While this judicial review arises in the context of a prosecution of the Applicant in the military justice system, it is not, in and of itself, criminal in nature. The general rule on applications for judicial review such as this is the same as in actions before this Court; that is, costs follow the event in the absence of special circumstances justifying a different result. I find nothing on the facts of this matter or in the nature of the issues raised on this application for judicial review that would justify a variation from the general rule. In the result, my order will provide that the Respondents are entitled to their costs, on the ordinary scale, if demanded.
_________________________________
J. F.C.C.
Ottawa, Ontario
June 5, 2002
SCHEDULE I
2. (1) In this Act,
...
"federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;
...
2. (1) Les définitions qui suivent s'appliquent à la présente loi.
...
« office fédéral » Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d'une prérogative royale, à l'exclusion d'un organisme constitué sous le régime d'une loi provinciale ou d'une personne ou d'un groupe de personnes nommées aux termes d'une loi provinciale ou de l'article 96 de la Loi constitutionnelle de 1867.
...
18. (1) Subject to section 28, the Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
...
18.5 Notwithstanding sections 18 and 18.1, where provision is expressly made by an Act of Parliament for an appeal as such to the Court, to the Supreme Court of Canada, to the Court Martial Appeal Court, to the Tax Court of Canada, to the Governor in Council or to the Treasury Board from a decision or order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act.
18. (1) Sous réserve de l'article 28, la Section de première instance a compétence exclusive, en première instance, pour_:
a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral;
b) connaître de toute demande de réparation de la nature visée par l'alinéa a), et notamment de toute procédure engagée contre le procureur général du Canada afin d'obtenir réparation de la part d'un office fédéral.
...
18.5 Par dérogation aux articles 18 et 18.1, lorsqu'une loi fédérale prévoit expressément qu'il peut être interjeté appel, devant la Cour fédérale, la Cour suprême du Canada, la Cour d'appel de la cour martiale, la Cour canadienne de l'impôt, le gouverneur en conseil ou le Conseil du Trésor, d'une décision ou d'une ordonnance d'un office fédéral, rendue à tout stade des procédures, cette décision ou cette ordonnance ne peut, dans la mesure où elle est susceptible d'un tel appel, faire l'objet de contrôle, de restriction, de prohibition, d'évocation, d'annulation ni d'aucune autre intervention, sauf en conformité avec cette loi.
SCHEDULE II
60. (1) The following persons are subject to the Code of Service Discipline:
(a) an officer or non-commissioned member of the regular force;
...
60. (1) Sont seuls justiciables du code de discipline militaire_:
a) les officiers ou militaires du rang de la force régulière;
...
66. (1) A person may not be tried or tried again in respect of an offence or any other substantially similar offence arising out of the facts that gave rise to the offence if, while subject to the Code of Service Discipline in respect of that offence, or if, while liable to be charged, dealt with and tried under the Code in respect of that offence, the person
(a) has been found not guilty by a service tribunal, civil court or court of a foreign state on a charge of having committed that offence; or
(b) has been found guilty by a service tribunal, civil court or court of a foreign state on a charge of having committed that offence and has been punished in accordance with the sentence.
...
66. (1) Ne peut être jugée -- ou jugée de nouveau --, pour une infraction donnée ou toute autre infraction sensiblement comparable découlant des faits qui lui ont donné lieu, la personne qui, alors qu'elle est assujettie au code de discipline militaire à l'égard de cette infraction ou susceptible d'être accusée, poursuivie et jugée pour cette infraction sous le régime de ce code, se trouve dans l'une ou l'autre des situations suivantes_:
a) elle a été acquittée de cette infraction par un tribunal civil ou militaire ou par un tribunal étranger;
b) elle a été déclarée coupable de cette infraction par un tribunal civil ou militaire ou par un tribunal étranger et a été punie conformément à la sentence.
...
71. Subject to section 66, nothing in the Code of Service Discipline affects the jurisdiction of any civil court to try a person for any offence triable by that court.
...
71. Sous réserve de l'article 66, le code de discipline militaire n'a pas pour effet d'empêcher un tribunal civil de juger toute infraction pour laquelle il a compétence.
...
130. (1) An act or omission
(a) that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, or
is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2).
...
130. (1) Constitue une infraction à la présente section tout acte ou omission_:
a) survenu au Canada et punissable sous le régime de la partie VII de la présente loi, du Code criminel ou de toute autre loi fédérale;
Quiconque en est déclaré coupable encourt la peine prévue au paragraphe (2).
...
139. (1) The following punishments may be imposed in respect of service offences and each of those punishments is a punishment less than every punishment preceding it:
...
(c) dismissal with disgrace from Her Majesty's service;
(d) imprisonment for less than two years;
(e) dismissal from Her Majesty's service;
(f) detention;
(g) reduction in rank;
(h) forfeiture of seniority;
(i) severe reprimand;
(j) reprimand;
(k) fine; and
(l) minor punishments.
...
139. (1) Les infractions d'ordre militaire sont passibles des peines suivantes, énumérées dans l'ordre décroissant de gravité
...
c) destitution ignominieuse du service de Sa Majesté;
d) emprisonnement de moins de deux ans;
e) destitution du service de Sa Majesté;
f) détention;
g) rétrogradation;
h) perte de l'ancienneté;
i) blâme;
j) réprimande;
k) amende;
l) peines mineures.
...
162. Charges under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit.
...
162. Une accusation aux termes du code de discipline militaire est traitée avec toute la célérité que les circonstances permettent.
...
173. A Standing Court Martial may try any officer or non-commissioned member who is liable to be charged, dealt with and tried on a charge of having committed a service offence.
174. Every military judge is authorized to preside at a Standing Court Martial, and a military judge who does so constitutes the Standing Court Martial.
175. A Standing Court Martial may not pass a sentence that includes a punishment higher in the scale of punishments than dismissal with disgrace from Her Majesty's service.
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173. La cour martiale permanente a compétence en matière d'infractions d'ordre militaire imputées aux officiers et militaires du rang justiciables du code de discipline militaire.
174. La cour martiale permanente est constituée par un seul juge militaire.
175. La peine maximale que la cour martiale permanente peut infliger dans sa sentence est la destitution ignominieuse du service de Sa Majesté.
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230. Every person subject to the Code of Service Discipline has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:
(a) with leave of the Court or a judge thereof, the severity of the sentence, unless the sentence is one fixed by law;
230. Toute personne assujettie au code de discipline militaire peut, sous réserve du paragraphe 232(3), exercer un droit d'appel devant la Cour d'appel de la cour martiale en ce qui concerne les décisions suivantes d'une cour martiale_:
a) avec l'autorisation de la Cour d'appel ou de l'un de ses juges, la sévérité de la sentence, à moins que la sentence n'en soit une que détermine la loi;
(b) the legality of any finding of guilty;
(c) the legality of the whole or any part of the sentence;
(d) the legality of a finding of unfit to stand trial or not responsible on account of mental disorder;
(e) the legality of a disposition made under section 201, 202 or 202.16; or
(f) the legality of a decision made under subsection 196.14(1) or 196.15(1).
230.1 The Minister, or counsel instructed by the Minister for that purpose, has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:
(a) with leave of the Court or a judge thereof, the severity of the sentence, unless the sentence is one fixed by law;
(b) the legality of any finding of not guilty;
(c) the legality of the whole or any part of the sentence;
(d) the legality of a decision of a court martial that terminates proceedings on a charge or that in any manner refuses or fails to exercise jurisdiction in respect of a charge;
(e) the legality of a finding of unfit to stand trial or not responsible on account of mental disorder;
(f) the legality of a disposition made under section 201, 202 or 202.16; or
(g) the legality of a decision made under subsection 196.14(1) or 196.15(1).
b) la légalité de tout verdict de culpabilité;
c) la légalité de la sentence, dans son ensemble ou tel aspect particulier;
d) la légalité d'un verdict d'inaptitude à subir son procès ou de non-responsabilité pour cause de troubles mentaux;
e) la légalité d'une décision rendue aux termes de l'article 201, 202 ou 202.16;
f) la légalité de la décision prévue aux paragraphes 196.14(1) ou 196.15(1).
230.1 Le ministre ou un avocat à qui il a donné des instructions à cette fin peut, sous réserve du paragraphe 232(3), exercer un droit d'appel devant la Cour d'appel de la cour martiale en ce qui concerne les décisions suivantes d'une cour martiale_:
a) avec l'autorisation de la Cour d'appel ou de l'un de ses juges, la sévérité de la sentence, à moins que la sentence n'en soit une que détermine la loi;
b) la légalité de tout verdict de non-culpabilité;
c) la légalité de la sentence, dans son ensemble ou tel aspect particulier;
d) la légalité d'une décision d'une cour martiale qui met fin aux délibérations ou qui refuse ou fait défaut d'exercer sa juridiction à l'égard d'une accusation;
e) relativement à l'accusé, la légalité d'un verdict d'inaptitude à subir son procès ou de non-responsabilité pour cause de troubles mentaux;
f) la légalité d'une décision rendue aux termes de l'article 201, 202 ou 202.16;
g) la légalité de la décision prévue aux paragraphes 196.14(1) ou 196.15(1).
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2377-00
STYLE OF CAUSE: B51 641 513 PRIVATE THOMAS JOHN FORSYTH
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA AND LIEUTENANT-COLONEL ALAIN MÉNARD in his capacity as military judge
Respondents
DATES OF HEARING: May 13, 2002
PLACE OF HEARING: OTTAWA, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: June 5, 2002
APPEARANCES BY:
Major David McNairn For the Applicant
Brian Evernden For the Respondent the
Major Ken Lindstein Attorney-General
SOLICITORS OF RECORD:
Major D.P. McNairn For the Applicant
Directorate of Defence Counsel
Services of the Canadian Forces
Asticou Centre, Block 1900
101 Colonel By Drive
Ottawa, Ontario
K1A OK2
Alain Préfontaine For the Respondent
Counsel, Civil Litigation Section
Department of Justice Canada
284 Wellington Street
Ottawa, Ontario
K!a OH8
[1] Tribunal Record entitled "Application On Jurisdiction", Page B.
[2] Tribunal Record, pages 164 to 167.
[3] Tribunal Record, pages 164 and 165.
[4] Applicant's Application Record, tab 1, page 3.
[5] Applicant's Application Record, tab 6, pages 9 and 10.
[6] R.S.C. 1985, c. F-7.
[7] R.S.C. 1985, c. N-5.
[8] The day following the hearing of this application for judicial review, the Court Martial Appeal Court of Canada issued its reasons for judgment in Lachance v. Her Majesty the Queen [2002] CMAC 7, May 14, 2002. In those reasons, Mr. Justice Létourneau, for the Court, wrote at paragraphs [6] and [7]:
[6] Paragraph 230(b) of the Act gives an accused a right to appeal "the legality of any finding of guilty". But it is still necessary that the appeal be filed against this verdict. In the present case, the notice of appeal is addressed to "the legality of one or more verdicts" but without specifying which ones ... . The grounds of appeal contained in the notice of appeal are addressed only to the decision of the military judge dismissing the motion to stay the proceedings. And in paragraph 6 of his memorandum, the appellant writes: "[Translation] This is an appeal only of the military judge's decision to dismiss the appellant's motion." But that decision is not a finding within the meaning of section 230 of the Act, and it is not a finding alone that can be appealed.
[7] However, on an appeal specifically filed against a finding of guilty, a decision refusing to order a stay of proceedings may also be reviewed and set aside if the pre-trial delay is unreasonable, if it so prejudiced the accused that the trial should have been prohibited and, accordingly, it resulted in a conviction that is unlawful because it is contrary to the Charter. [citation omitted]
I am satisfied that the Lachance decision supports my conclusion to this point. The reasons in Lachance, provided to the Court and counsel for the Applicant by counsel for the Respondent, were drawn by the Court to the attention of counsel for the Applicant and he was provided an opportunity to make written submissions with respect to them. Submissions were received and have been taken into account in these reasons.
[9] [1989] 3 F.C. 281 (T.D.).
[10] (2001), 201 F.T.R. 196; [2001] FCT 199.
[11] [1978] 1 F.C. 233 (T.D.).
[12] Supra, note 10.
[13] [1995] 1 F.C. 588 (C.A.).