T-2377-00
2002 FCT 643
B51 641 513 Private Thomas John Forsyth (Applicant)
v.
The Attorney General of Canada and Lieutenant-Colonel Alain Ménard in his capacity as military judge (Respondents)
Indexed as: Forsyth v. Canada (Attorney General) (T.D.)
Trial Division, Gibson J.--Ottawa, May 13 and June 5, 2002.
Federal Court Jurisdiction -- Trial Division -- Judicial review of Military Judge's decision Standing Court Martial had jurisdiction to try accused (applicant) after criminal charge based on same alleged conduct in civilian court withdrawn -- Trial Division having exclusive jurisdiction under Federal Court Act, s. 18 to issue writ of prohibition directed to military judge in these circumstances -- S. 28 not applicable -- Standing Court Martial federal board, commission, other tribunal -- S. 18.5 providing where Parliament expressly providing for appeal from decision of federal, board, commission or other tribunal, decision not subject to be prohibited -- Trial Division's jurisdiction not ousted by s. 18.5 -- Right of person charged to appeal decision such as that under review merely implied in contrast to Minister's right of appeal under National Defence Act, s. 230.1.
Administrative Law -- Judicial Review -- Prohibition -- Judicial review of Military Judge's decision Standing Court Martial had jurisdiction to try accused (applicant) after criminal charge based on same alleged conduct withdrawn in civilian court -- Applicant seeking to prohibit military trial from proceeding -- MacKay v. Rippon, [1978] 1 F.C. 233 (T.D.) still relevant: prohibition discretionary where lack of jurisdiction not so apparent on face of proceeding -- National Defence Act, s. 162 requiring Code of Service Discipline to be dealt with as expeditiously as possible -- More expeditious to allow Military Court to deal with charge, appeal on ground of lack of jurisdiction than to apply for judicial review -- Not in best interests of justice to grant prohibition as could set precedent, adding to complexity of military justice processes.
Armed Forces -- Judicial review of Military Judge's decision Standing Court Martial had jurisdiction to try accused (applicant) after charge based on same alleged conduct withdrawn in civilian court -- Trial Division having jurisdiction under Federal Court Act, s. 18 to grant writ of prohibition directed to military judge in these circumstances; such jurisdiction not ousted by s. 18.5; not in interests of justice to exercise discretion to grant prohibition as not most expeditious way of proceeding as required by National Defence Act, s. 162 -- Applicant cannot rely on own failure to obtain dismissal of charge (for want of evidence) to bar exercise of concurrent jurisdiction vested in military justice system -- No unseemly competition between civilian, criminal justice systems.
This was an application for judicial review of an interlocutory decision of a Military Judge denying an application for a determination that the Standing Court Martial had no jurisdiction to try the accused. As a result of a domestic dispute, the applicant had been charged with common assault under the Criminal Code, but the charge was withdrawn on the day that the trial was scheduled to begin. The applicant was aware that the only witness to the assault, his former girlfriend, was not available to testify. The military authorities subsequently decided to proceed with the charge by Standing Court Martial. The applicant was seeking a writ of prohibition directed to the Military Judge to prohibit the trial from proceeding. Federal Court Act, section 18 confers exclusive jurisdiction on the Trial Division to issue a writ of prohibition against any federal board, commission or other tribunal, subject to section 28. Section 18.5 provides that where provision is expressly made by an Act of Parliament for an appeal from a decision of a federal board, commission or other tribunal, that decision or order is not subject to be prohibited.
The issues were: (1) whether the Court had jurisdiction under Federal Court Act, section 18 to grant a writ of prohibition directed to a military judge in the circumstances herein; (2) whether the application for a writ of prohibition was barred by Federal Court Act, section 18.5; and (3) whether the Court should exercise its discretion to grant prohibition.
Held, the application should be dismissed.
(1) The Trial Division had exclusive jurisdiction to issue a writ of prohibition. Section 28 had no application, and it was not disputed that the Standing Court Martial was a federal board, commission or other tribunal.
(2) The Court's jurisdiction under section 18 to provide the relief requested was not ousted by section 18.5. National Defence Act, paragraph 230(b) gives every person subject to a Code of Service discipline a right to appeal to the Court Martial Appeal Court from a court martial in respect of the legality of any finding of guilty. The issue of the jurisdiction of the Standing Court Martial would go to the legality of any such guilty finding. Paragraph 230.1(b) permits the Minister to appeal to the Court Martial Appeal Court the legality of any finding of not guilty by a court martial (the converse of the right of appeal granted to a person charged by paragraph 230(b)). Paragraph 230.1(d) gives the Minister the right to appeal to the Court Martial Appeal Court the legality of a decision of a court martial that terminates proceedings on a charge. Such a decision would be the converse of the decision under review which upholds the jurisdiction of the Standing Court Martial in respect of the charge against the applicant. Paragraph 230.1(d) constitutes an express provision made by an Act of Parliament for an appeal that has no equivalent in favour of a person such as the applicant in section 230, or in any other provision of the National Defence Act or any other Act of Parliament. The right of a person such as the applicant to appeal from a decision such as that under review is merely implied.
(3) MacKay v. Rippon, [1978] 1 F.C. 233 (T.D.) stated that where 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. Despite the comment in Rushnell v. Canada (Attorney General) (2001), 201 F.T.R. 196 (F.C.T.D.) that MacKay could no longer be relied upon, it is still relevant and apt as it related to the discretionary nature of prohibition, and the "great caution and forbearance" that should be exercised before granting prohibition in cases such as this. Section 162 of the National Defence Act provides that charges under the Code of Service Discipline shall be dealt with as expeditiously as possible. It would have been consistent with section 162 if the applicant had allowed the Standing Court Martial to deal with the charge against him and then appealed a finding of guilt on the ground that it was not legal by reason of want of jurisdiction. Pursuit of this application for judicial review has taken substantially more time than would have been required to so proceed. It would be contrary to the best interests of justice to grant prohibition as to do so might constitute a precedent, and add complexity to the military justice system.
That the applicant failed to take advantage of the opportunity to obtain dismissal of the charge against him which would have forever barred an equivalent charge being laid in the military justice system, should not bar exercise of the concurrent jurisdiction vested in the military justice system. The Crown's failure to disclose the knowledge that if the charge in the civilian justice system were withdrawn, a charge might have been laid in the military justice system, did not prejudice the applicant's opportunity to make full answer and defence to the charge against him in the civilian justice system. There was no basis on which to conclude that the concurrent jurisdiction of the military justice system, under the National Defence Act was ousted by the procedure followed in the civilian justice system. Further, there was no evidence that the conduct of Crown counsel and the conduct of military justice system authorities gave rise to an "unseemly competition" between the civilian and military justice systems, or caused a delay 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.
statutes and regulations judicially
considered
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2(1) "federal board, commission or other tribunal" (as am. by S.C. 1990, c. 8, s. 1), 18 (as am. idem, s. 4), 18.5 (as enacted idem, s. 5), 57 (as am. idem, s. 19).
| National Defence Act, R.S.C., 1985, c. N-5, ss. 60(1)(a) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 60, Sch. I, s. 30), 66(1) (as am. by S.C. 1998, c. 35, s. 20), 71 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 46), 130(1) (as am. by S.C. 1998, c. 35, ss. 33, 92), 139(1) (as am. idem, s. 35), 162 (as am. idem, s. 42), 173 (as am. idem), 174 (as am. idem), 175 (as am. idem), 230 (as am. by S.C. 1991, c. 43, s. 21; 2000, c. 10, s. 2), 230.1 (as enacted by S.C. 1991, c. 43, s. 21; 2000, c. 10, s. 3). |
cases judicially considered
applied:
Glowczeski v. Canada (Minister of National Defence), [1989] 3 F.C. 281; (1989), 41 C.R.R. 217; 27 F.T.R. 112 (T.D.); Rushnell v. Canada (Attorney General) (2001), 201 F.T.R. 196 (F.C.T.D.); MacKay v. Rippon, [1978] 1 F.C. 233; (1977), 78 D.L.R. (3d) 655; 36 C.C.C. (2d) 522 (T.D.).
considered:
R. v. Lachance, 2002 CMAC 7; [2002] C.M.A.J. No. 7 (QL); David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588; (1994), 58 C.P.R. (3d) 209; 176 N.R. 48 (C.A.).
APPLICATION for judicial review of an interlocutory decision of a Military Judge denying an application for a determination that the Standing Court Martial had no jurisdiction to try the accused. Application dismissed.
appearances:
Major David P. McNaim for applicant.
Brian R. Evernden, Major Ken Lindstein and Alain Préfontaine for respondent Attorney General of Canada.
No one appearing for respondent Lieutenant-Colonel Alain Ménard.
solicitors of record:
Office of the Judge Advocate General, Ottawa, for applicant.
Deputy Attorney General of Canada for respondent Attorney General of Canada.
The following are the reasons for order rendered in English by
Gibson J.:
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 April 28, 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 review2 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 November 30, 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, November 24, 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 law5 are the following:
1. Whether this Court has jurisdiction under section 18 of the Federal Court Act6 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 [as enacted by S.C. 1990, c. 8, s. 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" [as am. idem, s. 1] 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) [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 60, Sch. I, s. 30], subsection 66(1) [as am. by S.C. 1998, c. 35, s. 20], section 71 [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 46], paragraph 130(1)(a) [as am. by S.C. 1998, c. 35, ss. 33, 92] and the closing words of subsection 130(1), paragraphs 139(1)(c) to (l) [as am. idem, s. 35], and sections 162 [as am. idem, s. 42], 173 [as am. idem] to 175 [as am. idem], 230 [as am. by S.C. 1991, c. 43, s. 21; 2000, c. 10, s. 2] and 230.1 [as enacted by S.C. 1991, c. 43, s. 21; 2000, c. 10, s. 3] of the National Defence Act7 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.]
[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 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 284-285:
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 v. Canada (Attorney General),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.
[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 245-246:
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 596-597:
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 [as am. by S.C. 1990, c. 8, s. 19] of the Federal Court Act. A copy of the notice, together with proof of service, was filed in this Court on November 15, 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 principal 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.
SCHEDULE I
[Federal Court Act]
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;
. . .
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.
SCHEDULE II
[National Defence Act]
60. (1) The following persons are subject to the Code of Service Discipline:
(a) an officer or non-commissioned member of the regular force;
. . .
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.
. . .
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.
. . .
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).
. . .
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.
. . .
162. Charges under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit.
. . .
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.
. . .
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;
(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).
1 Tribunal record entitled "Application On Jurisdiction", p. B.
2 Tribunal record, pp. 164-167.
3 Tribunal record, pp. 164-165.
4 Applicant's application record, Tab 1, p. 3.
5 Applicant's application record, Tab 6, pp. 9-10.
6 R.S.C., 1985, c. F-7 [s. 18 (as am. by S.C. 1990, c. 8, s. 4)].
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 R. v. Lachance, 2002 CMAC 7; [2002] C.M.A.J. No. 7 (QL), May 14, 2002. In those reasons, Mr. Justice Létourneau, for the Court, wrote at paragraphs 6 and 7:
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.
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 on 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 (F.C.T.D.).
11 [1978] 1 F.C. 233 (T.D.).
12 Supra, note 10.
13 [1995] 1 F.C. 588 (C.A.).