Court Martial Appeal Court

Date: 20180509

Docket: CMAC-590

Citation: 2018 CMAC 2

Hearing held in Vancouver, British Columbia, on March 19, 2018.

Judgment delivered at Ottawa, Ontario, on May 9, 2018.

Date: 20180509

Docket: CMAC-590

Citation: 2018 CMAC 2

REASONS FOR JUDGMENT BY THE COURT

[1]  On January 25, 2017, a General Court Martial found the Appellant guilty, pursuant to s.130(1)(a) of the National Defence Act, R.S.C. 1985, c. N-5 [NDA] of four counts of fraud contrary to s. 380 of the Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code]. Following conviction, the military judge imposed a sentence of 30 days’ incarceration. The military judge ordered the Appellant’s release pending the hearing of the within appeal.

[2]  The Appellant contends the convictions are null and void given that the charge-layer did not have reasonable grounds to believe the offences had been committed at the time he (the charge-layer) signed the  Record of Disciplinary Proceedings [RDP]. The RDP is the military law equivalent of an information in the criminal law context. The Respondent admits the charge-layer did not have the requisite reasonable belief, and concedes that the appeal should be allowed and the convictions quashed. We agree.

[3]  Although the NDA contains no provision identical to s. 504 of the Criminal Code, which requires that the informant possess reasonable and probable grounds to believe an accused has committed an offence, a similar requirement exists by application of the Queen’s Regulations and Orders for the Canadian Armed Forces (QR&O) s. 107.02, and the Note attached thereto. Those provisions read as follows:

[4]  As in the criminal law system, the requirement that the charge-layer possess reasonable grounds to believe the accused has committed the offence charged constitutes a safeguard against the irresponsible laying of charges (R. v. Peavoy, [1974] O.J. No. 103, (1974) 15 C.C.C. (2d) 97 (Ont. H.C.). See also R. v. Delalla, 2015 BCSC 592, [2015] B.C.J. No. 702 [Delalla], at paras 60-63; R. v. Edge, 2004 ABPC 55, 21 CR (6th) 361 at paras 23-25). Failure to meet this reasonably grounded belief requirement is fatal to an RDP and results in a loss of jurisdiction (R. v. Awad, 2015 NSCA 10, [2015] N.S.J. No. 34; Delalla; R. v. Pilcher, [1981] M.J. No. 552, (1981) 58 C.C.C. (2d) 435 (Man. Prov. Ct.)). Where this loss of jurisdiction arises, the RDP cannot be cured by the subsequent referral of charges by the Director of Military Prosecutions (R. v. Laity, 2007 CM 3011, at para. 30).

[5]  In his written submissions, the Appellant also sought a stay of proceedings based upon alleged Crown misconduct and a purported violation of his right to be tried within a reasonable time. In support of the latter claim, he relied upon s. 11(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c. 11 [Charter] and the decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.  At the outset of the oral hearing on this appeal, the Appellant acknowledged that if the trial proceedings constituted a nullity, there exists no properly instituted proceeding for which a stay could be granted on either basis advanced. We agree. The proceedings and convictions are rendered a nullity by the charge-layer’s lack of reasonably grounded belief. We allow the appeal and quash the convictions. In the circumstances, we have no jurisdiction to grant the Appellant’s request for a stay of proceedings.

“B. Richard Bell”

“David Watt”

“J. Edward Scanlan”

COURT MARTIAL APPEAL COURT OF CANADA

NAMES OF COUNSEL AND SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: