Able Seaman B.W. Betts, Applicant - v. -, 2017 CM 3009

COURT MARTIAL Citation: R. v. Betts , 2017 CM 3009 Date: 20170529 Docket : 201709 General Court Martial Canadian Forces Base Esquimalt Victoria, British Columbia, Canada Between: Able Seaman B.W. Betts, Applicant - and - Her Majesty the Queen, Respondent Before: Lieutenant-Colonel L.-V. d’Auteuil, M.J. DECISION RESPECTING AN APPLICATION SEEKING A STAY OF PROCEEDINGS PURSUANT TO SUBSECTION 24(1) OF THE CHARTER FOR A VIOLATION OF THE RIGHT TO FUNDAMENTAL FREEDOMS GUARANTEED UNDER SUBSECTION 2(

b) OF THE CHARTER (Orally) [ 1 ] A notice of application has been notified to the court through the Office of the Chief Military Judge by the offender, Able Seaman Betts, today, 29 May 2017, regarding the constitutionality of the message identified in the particulars of the charges, in accordance with subsection 2(

b) of the Canadian Charter of Rights and Freedoms . He is seeking, as a remedy, a stay of the proceedings, pursuant to subsection 24(1) of the Charter . [ 2 ] The context is as follows: (

a) the preferral of the charges was made on 27 April 2017; (

b) the Convening Order was issued the day after, on 28 April 2017;

(

c) the trial started on 15 May 2017; (

d) the finding by the panel members was delivered on 28 May 2017, in the context of a General Court Martial; and (

e) the application was made today, 29 May 2017, which is after the finding was delivered by panel members. [3] Prosecution objects to this application being heard by the court because of the timing of it. This objection does not go at allto the substance or the merit of the application, but it is related to the timing, being after the finding rendered by panel members.

Theevidence to be used by the court to make its determination is the evidence heard during the trial. [4] The position of the prosecution on this matter is that the court has an inherent jurisdiction to control its own process,including hearing or not the matter at issue. The facts related to the charges were known by the offender, according to the prosecution,since at least 27 April 2017 and, alternately, since 3 May 2017, the date when Able Seaman Betts filed a notice of application in thismatter.

According to the prosecution, Able Seaman Betts was in a position to present his application on the Charter earlier in theprocedure and therefore the prosecution is raising the issue of timing of the presentation of this matter. [5] The prosecution argued that hearing this matter would extend the trial and the consequence of doing so would addsignificant costs to it and significant length to the matter, considering that, potentially, it would not be heard before October 2017, whichwould add about five months to this trial. [6] Also, the prosecution suggested that by hearing precisely the matter after the panel rendered its decision, it would appear asthe Court altering the verdict, meaning that somebody unhappy with a decision or with the result of it would be in a position to ask theCourt to review the finding, which would be a review of the conviction, but from a Charter’s perspective.

In addition, it would besomething similar to an appeal that must be done, according to prosecution, to the Court Martial Appeal Court. So the prosecution askedthis Court to decline hearing the application presented by Able Seaman Betts. [7] The applicant’s position is that he provided reasonable notice, including the fact that he suggested not to hear the matter atthis time, but later in the process in order to allow both parties to be ready to address the issue and also to consider proper evidence to beadduced.

The applicant’s position is that he had to see what came out at trial to make a decision about presenting this application or not,otherwise, he would have been placed in a situation where he had an insufficient factual basis to make such a determination. Theapplicant argued that the interests of justice and fairness are at stake and if the court decides not to hear the matter, then the remedysought, which is a stay of proceedings, would not be available and the message sent by its decision not to hear the matter, would bedetrimental to the Canadian Forces. [8] A number of cases were submitted on this issue.

It starts with R. v. Simms, 2015 CM 4007, a decision of Pelletier MJ; also,R. v. Henderson, (ON CA), [2004] O.J. No. 4157, an Ontario Court of Appeal decision; there is also the matter ofWarring, at the trial level (2016 ABQB 236) and appeal level (2017 ABCA 128); a New Brunswick Court of Appeal decision in thematter of King v. Canada (Attorney General), (NB CA), [1997] N.B.J. No. 106; and also another Ontario Court ofAppeal decision in R. v. Darrach, (ON CA), [1998] O.J. No. 397.

I would also add that, concerning the inherentjurisdiction to control its own process, the Court looked at two Ontario Court of Appeal decisions, Kutynec, ,especially in the matter of the Charter and Felderhof, and also a Supreme Court of Canada decision in Pires andLising, 2005 SCC 66. [9] Basically, all those decisions came at least to one common point, which is the fact that this Court has inherent jurisdiction tocontrol its own process, especially when a matter involving the Charter is presented.

I think it is loud and clear that the matter to hear ornot the application and when to hear it, if the court decides to hear it, can be decided by the Court.

Basically, a trial judge is expected andentitled to take reasonable steps to ensure that the issues are clear, that evidence is presented in an organized and efficient manner, andthat the trial runs smoothly and proceeds in a timely manner. [10] I would say that having reviewed all those decisions and considering the context here, the question to be decided by this Courtabout timing must be narrowed to the fact that this application is presented after the verdict of the panel in this General Court Martial hasbeen delivered. So the Court has to assess the impact on this being seen as altering the verdict or not.

The timing of the presentation ofthis application brings the Court to make a decision on this specifically. So what it is raised is the capacity of the applicant to bring this

matter before the Court earlier in the process. [ 11 ] So I looked at the arguments and I considered all the evidence. Basically, the offender was aware of the charges as they are before this Court and on which he was convicted. He knew them since the end of April 2017. And contrary to what was argued by his defence counsel, there was no necessity to know the case in itself in order to make a decision to present or not the application. In fact, he was able to decide, on a balance of probabilities, about the presentation of it probably early as 27 April 2017.

The words and the context were known, in the sense that it was stated in the particulars of each charge. Disclosure or the necessary information was in his possession and also he had the capacity to call evidence in the context of a Charter application, even calling prosecution witnesses in order to establish the specific context and prove his case. The application could have been brought earlier in the process. [ 12 ] According to me and what I have read from the various case law, an applicant claiming a violation of his right must announce his intent as early as possible when he has the proper information.

Here, I think and I conclude that it could have been announced as early as before the trial started.

By announcing the intent as early as possible, it allows the court to determine the proper timing to hear the matter, to hear the application and permits the parties to argue about the best time to hear the application and, also, the court is in a position to appreciate the impact on the length of the trial and the resources required for that. [ 13 ] Also, by bringing the matter prior to the finding of this Court and as early as possible, it avoids the situation where it appears as the Court hearing the matter would alter the finding of the panel and it would avoid also as asking the Court, or the judge presiding at the court martial, to review the panel’s decision on the finding.

Basically, by hearing this application at this point, it could be viewed as the applicant being unhappy with the result and asking in some way, to review the finding, but under a different perspective, which would under the Canadian Charter of Rights and Freedoms . FOR THESE REASONS, THE COURT: [ 14 ] DECLINES to hear the application presented by the offender. Counsel: Lieutenant-Colonel D. Berntsen and Major A.H. Bolik, Defence Counsel Services, Counsel for the Applicant, Able Seaman B.W. Betts The Director of Military Prosecutions as represented by Major D.G.J. Martin for the Respondent