R. v. Derival, 2018 CM 4005

COURT MARTIAL Citation: R. v. Derival , 2018 CM 4005 Date: 20180314 Docket : 201760 Standing Court Martial Canadian Forces Base Esquimalt Victoria, British Columbia, Canada Between: Her Majesty the Queen Prosecutor and Responding Party - and - Leading Seaman K. Derival Accused and Moving Party Before: Commander J.B.M. Pelletier, M.J.

RULING ON RESPONDENT’S MOTION TO QUASH AN APPLICATION FOR A PLEA IN BAR OF TRIAL (Orally) [ 1 ] In a notice of application dated 6 February 2018, supported by written arguments, the applicant, Leading Seaman Derival, asks the court to find that it has lost jurisdiction as a result of having made a preliminary finding of mixed law and fact without hearing submissions and without Leading Seaman Derival being present in the course of a case management teleconference held on 30 January 2018. [ 2 ] That teleconference was held as requested by the applicant’s counsel to discuss a notice of application of a constitutional nature filed earlier.

During the teleconference, the undersigned military judge verbally directed that a more detailed notice of application be filed and that it be accompanied by written arguments on a set

schedule involving both parties. That verbal direction was followed with detailed direction in writing in the form of a written order released the same day, 30 January 2018.

[3] In response, the respondent prosecution asks that the application be summarily dismissed, arguing that case managementteleconferences are and have been used as important tools to improve the efficiency of proceedings in a manner that conforms with recentSupreme Court of Canada (SCC) direction to trial judges to ensure speedier trials, notably in the cases of R. v. Jordan, 2016 SCC 27 andR. v. Cody, 2017 SCC 31. [4] After receiving documentary evidence jointly submitted and hearing from both parties on the issue of whether theapplication should proceed, I have concluded that the application must be dismissed.

Indeed, the application cannot succeed as it lackssufficient basis in both facts and law. [5] The only legal authorities in support of the applicant’s position consists of cases where a court or tribunal had decided theultimate issue in a hearing, including, for instance, on whether a person should be retained in custody or committed for trial, withouthearing the party which ultimately was on the losing side of the issue.

In oral arguments, counsel for the applicant conceded that therewas no decision on the ultimate issue on 30 January 2018, but argued that the issue was significant enough to engage the obligation tohear arguments and ensure the presence of the accused. [6] The argument by counsel on behalf of the applicant rests on the assertion that on 30 January 2018 the undersigned militaryjudge made a decision without Leading Seaman Derival being present and without allowing submissions from defence on an issue whichaffected him, in contravention of the principles of fundamental justice.

Counsel for the applicant described the negative effects from thealleged finding in written argument as follows: first, it is alleged that it is unfair to require from the applicant who challenges theconstitutionality of two sections of the National Defence Act, including the

section under which he is charged, to provide writtenargument in advance of the prosecution calling its evidence on the case; second, it is alleged that the request for a revised notice ofapplication is important to the defence because if the original notice had been sufficient, it would have limited the details of defence’santicipated arguments, which would be available to prosecution in advance and therefore places Leading Seaman Derival in a weakerposition. [7] The applicant’s submission reveals a misunderstanding of both the issue to be decided in the course of the 30 January 2018teleconference and the duty of the trial judge to manage proceedings in relation to that issue to ensure proceedings are conductedefficiently in a manner that minimizes delay. [8] The issue to be decided on 30 January 2018 at the case management teleconference requested by the applicant’s counsel washow the notice of application should be dealt with. [9] In observing that, in his view, the notice of application as filed did not include sufficient details to enable the opposing partyand the military judge to appreciate the evidence and legal authorities supporting the allegations made therein and ensure it can be heardefficiently, the undersigned military judge was not depriving the applicant from any right in relation to that issue.

In fact, it could beargued that in allowing the applicant to improve or perfect its notice of application, the undersigned military judge assisted the applicantin mounting a stronger constitutional challenge, especially given that the prosecutor had expressed the possibility of moving for theapplication to be summarily dismissed from the bench on the basis of the notice of application as it stood. The 30 January 2018 order,thus, accommodates that possibility. [10] In requesting written arguments to be filed, the undersigned military judge was not treating the applicant with more rigourthan the other party.

A timetable was set up for production of written material by both parties. Production of written material isspecifically foreseen at paragraph 39 in Cody. Such step is a tool used for trial management purposes by trial judges to ensure efficientadministration of justice, in this case by ensuring that the judge has the opportunity to adequately instruct himself in the argument andsupporting law prior to the hearing. The obligation to deal with matters efficiently has been highlighted recently in paragraphs 37 and 38of Cody, but is by no means novel. The issue was discussed by the Ontario Court of Appeal in R. v.

Kutynec, (ONCA), [1992] O.J. No. 347 and later in this province, by the British Columbia Court of Appeal in R. v. Vukelich, (BCCA), [1996] BCJ No. 1535 (QL). This duty aligns with that of all justice participants to work in concert to achieve speedier trials asrecognized in Jordan at paragraph 116. [11] I do acknowledge the applicant’s argument to the effect that, in his view, Leading Seaman Derival was placed in adisadvantageous position by having to provide written argument in advance of the prosecution calling its evidence and precipitouslydeciding its strategy on the application.

It is not for me to judge what defence counsel may consider to be a tactical advantage for hisclient. Yet, the tactical advantage allegedly lost by defence may well be interpreted as “trial by ambush” by the prosecution. Regardlessof the label, I am obliged to find that proceeding on a constitutional application on the basis that the applicant is entitled to reveal as littleas possible to the other side is not the most efficient way to run such proceedings, not only for the judge, but also for the other parties, as

everyone has to work cooperatively to achieve more efficient proceedings. [ 12 ] Potential tactical advantages do not become procedural or substantive rights. The implication of the applicant’s argument is that every time the defence is obliged to provide information to the prosecution, even on an issue that it initiates and has the burden of proving, it is disadvantaged to a level that engages principles of fundamental justice; both in fact and in law, that proposition is unsustainable.

The benefit of a potential tactical advantage does not constitute a right to prevent a trial judge from exercising trial management functions, appropriate in the circumstances, and permit inefficient use of courts’ resources. Finding otherwise would go against powerful and recent authorities to the contrary.

The applicant has not suggested any legal authorities supporting his position on that issue. [ 13 ] The 30 January 2018 case management teleconference was not related to deciding the ultimate issue raised by the notice of application on the basis of which it was held, was irrelevant to any findings on the charges and did not negatively impact any rights on the part of Leading Seaman Derival.

The applicant has not shown any authority, in fact or in law, demonstrating that Leading Seaman Derival’s presence was required at that teleconference or that he needed to be heard prior to the undersigned military judge’s determination that the notice of application needed to be revised and that written arguments needed to be produced by the parties on a set schedule. [ 14 ] Therefore, the application has no reasonable chance of success and must be summarily dismissed. FOR THESE REASONS: [ 15 ] The prosecution’s motion to quash is granted.

Counsel: The Director of Military Prosecutions as represented by Major M.E. Leblond, Prosecutor and Counsel for the Responding Party Lieutenant-Colonel D. Berntsen, Defence Counsel Services, Counsel for Leading Seaman K. Derival, the Accused and Moving Party