R v Balint, 2012 CM 2010

COURT MARTIAL Citation: R v Balint , 2012 CM 2010 Date: 20120831 Docket: 201219 Standing Court Martial Royal Military College of Canada Kingston, Ontario, Canada Between: Her Majesty the Queen - and - Second Lieutenant A. Balint, Accused Before: Commander P.J. Lamont, M.J. DECISION ON PLEA IN BAR OF TRIAL APPLICATION FOR LACK OF JURISDICTION (Orally) [ 1 ] At the opening of her trial by Standing Court Martial on one charge of wilfully making a false entry in a document required for official purposes, the accused, Second Lieutenant Balint, through counsel, raises a plea in bar of trial under Queen’s Regulations and Orders article112.05(5)(

b) claiming pursuant to QR&O

article 112.24(1)(a), that this court lacks jurisdiction and that the proceedings should therefore, be terminated. [ 2 ] The written Notice of Plea in Bar was filed as an exhibit, M1-1. Apart from relying on the charge sheet, Exhibit 2, counsel for the accused called no further evidence in support of the plea. The prosecution called no evidence and the court proceeded to hear the addresses of counsel. [ 3 ] The Notice of Plea in Bar claims that the court lacks jurisdiction to proceed with the trial. In the course of her address, counsel particularized that it is a lack of personal jurisdiction over the accused that gives rise to the plea. As the notice itself says, "This Court

does not have jurisdiction over the reservist Applicant because the information on the charge sheet, even if proved, would not disclose aperson subject to the Code of Service Discipline." [4] The Charge Sheet, Exhibit 2, as amended, reads: "F88 275 188, Second Lieutenant Balint A., National Defence Headquarters Primary Reserve List, Reserve Forces, is charged withhaving committed the following offence: First charge

Section 125(

a) NDA WILFULLY MADE A FALSE STATEMENT IN A DOCUMENT MADE BY HER THAT WAS REQUIRED FOR OFFICIALPURPOSES Particulars: In that she, on or about 4 November 2011, made a statement in a Memorandum that, upon completing the first PPT of theyear she had achieved the necessary 20 MSR standard, knowing this information to be false." [5] In the case of R v Faught in 2006, I stated: A Standing Court Martial is an inferior court, and its jurisdiction is derived from statute, the National Defence Act.

Its jurisdiction is notpresumed and when it is challenged, as in this case, the court must be satisfied that it does indeed have jurisdiction over the accused andover the charge before it. [6] When the issue is raised the burden of proof of jurisdiction rests upon the prosecution. This was clearly settled by the CourtMartial Appeal Court in the case of R v Ryan, (CMAC), 1987 4 CMAR 563. In that case the court dealt with anobjection to the jurisdiction of a General Court Martial based upon what the court referred to as a lack of military nexus.

Justice Pratte,Justice Lacombe concurring, stated at page 567: With respect to the offences committed in Nanaimo, the Court's jurisdiction depended on the existence of the military nexus. There wasno evidence before the Court disproving its existence. On the other hand, there was no indication that it in fact existed: The offence, initself, had no relation to the military, and the circumstances in which it had been committed, insofar as they were known, did not point tothe existence of such a relationship. It was, therefore, impossible to determine whether the Court had or lacked jurisdiction.

In thosecircumstances, the Judge Advocate concluded that the appellant's challenge to jurisdiction had to be dismissed because the appellant hadnot established the absence of jurisdiction. That conclusion was wrong. A court martial is an inferior court. The chief distinctionbetween superior and inferior courts is that, unless the contrary is shown, no matter is presumed to be beyond the jurisdiction of asuperior court whereas nothing is presumed to be within the jurisdiction of an inferior court.

Once the appellant had challenged thejurisdiction of the Court Martial, therefore, the Judge Advocate could not assume, in the absence of proof to the contrary, that the Courthad jurisdiction. [7] This passage was quoted by Strayer C.J. delivering the judgment of the Court Martial Appeal Court in the later case of R vReddick, 1996 CMAC 393. Again, the jurisdictional issue concerned the presence or absence of a military nexus.

After referring to thecourt’s earlier decision in Ryan, the Chief Justice stated: With respect I believe this decision cannot be taken to mean that in every case the Crown is obliged to present evidence of jurisdiction ifan objection is raised by the accused. I can find no constitutional justification for that proposition. If the National Defence Act by itsterms clearly confers jurisdiction, as it does in the present case, then the only basis for attacking the jurisdiction of the court martial is todemonstrate that such law cannot constitutionally be applied to this particular accused or offence.

A mere assertion by the accused thatsuch is the case can surely not put on the Crown the burden of bringing "proof to the contrary" as suggested in the above quotedstatement from Ryan. I am unable to accept that because a court martial is an inferior court in the legal sense of that term there must bebrought "proof" of its jurisdiction before it can commence a hearing. As I understand it, there is a presumption of jurisdiction in asuperior court, but none in an inferior court. An inferior court established by statute is considered to have only the powers conferred on itexpressly or by necessary implication.

But when challenged it is surely open to such a court martial to look at its statute and to the

circumstances of the offence as alleged.

If it determines that those circumstances, if ultimately proved, would bring the matter within its jurisdiction then it may proceed. [Emphasis added] [ 8 ] I conclude therefore, that once the issue of personal jurisdiction over the accused is properly raised, the burden rests upon the prosecution to establish that the accused was subject to the Code of Service Discipline at the time of the event forming the subject matter of the charge. [ 9 ] Reddick is distinguishable from the present case as the main issue in Reddick concerned the requirement, if any, for a military nexus to ground the authority of a court martial to try an accused who had been released from the Canadian Forces since the alleged offence, but prior to the trial.

The National Defence Act clearly provided in subsection 60(2) for the continued liability of a released member under the Code of Service Discipline for offences committed prior to his release, and the issue was whether that provision of the National Defence Act was constitutionally invalid because the legislative authority of parliament could not extend to the accused without trenching upon the authority of provincial legislatures under the Constitution Act to legislate in respect of the administration of justice in the province, including the constitution, maintenance, and organization of provincial courts of criminal jurisdiction.

But these distinctions from the present case do not diminish the force of another principle for which Reddick is authority, and that is that where the jurisdiction of a court martial is put into issue, the court may look to the terms of the National Defence Act , and to the allegations made in the charge sheet to determine whether, if the allegations are established, the court has jurisdiction over the accused. Accordingly, I turn to those sub-issues. [ 10 ]

Part III of the National Defence Act contains a complete code for the exercise of discipline in the Canadian Forces, called the Code of Service Discipline. The jurisdiction of this court over the person of the accused depends upon whether the accused was subject to the Code of Service Discipline at the time of the transaction referred to in the charge. Personal jurisdiction is dealt with in

section 60 of the Act . [ 11 ] Subsection 60(1) provides: The following persons are subject to the Code of Service Discipline: (

a) an officer or non-commissioned member of the regular force; (

b) an officer or non-commissioned member of the special force; (

c) an officer or non-commissioned member of the reserve force when the officer or non-commissioned member is (

i) undergoing drill or training, whether in uniform or not, (ii) in uniform, (iii) on duty, (iv) [Repealed] ... (

v) called out under

part VI in aid of the civil power,

(vi) called out on service, (vii) placed on active service, (viii) in or on any vessel, vehicle or aircraft of the Canadian Forces or in or on any defence establishment or work for defence, (ix) serving with any unit or other element of the regular force or the special force, or (

x) present, whether in uniform or not, at any drill or training of a unit or other element of the Canadian Forces ... [ 12 ] From a plain reading of the charge, it is alleged that the accused was a member of the Reserve Force at the time of the alleged offence. Thus the Code of Service Discipline applies to the accused at that time if at least one of the enumerated circumstances specified in subsection 60(1)(

c) applies. But there is no evidence before me from which I can reasonably conclude that any of the enumerated circumstances applied to the accused on the date alleged in the charge when she allegedly made a false memorandum. [ 13 ] Neither can I reasonably infer from the terms of the charge itself that any of the circumstances specified in subsection 60(1)(

c) applied to the accused at the relevant time. [ 14 ] There are other clauses in subsection 60(1) subjecting the persons described to the Code of Service Discipline, but again there is simply no evidence from which to reasonably conclude that any of them applies to the accused at the time she allegedly made a false memorandum. [ 15 ] The prosecutor submits that there are a number of bases upon which he will establish in evidence during the trial that the accused was subject to the Code of Service Discipline at the time of the alleged offence.

He declined to specify one or more of the enumerated bases in subsection 60(1) as he claimed to be reserving the right of the prosecution to exercise its discretion. Whether this is or is not an area of prosecutorial discretion I need not decide because in my view the submission is simply not to the point. The opportunity to lead evidence that might satisfy the court as to its jurisdiction over the accused at the time of the alleged offence was given during the course of the plea in bar proceedings, and was declined.

From an evidentiary point of view, I am left only with the terms of the charge itself. [17] I am not persuaded by the evidence and argument on the plea in bar that the accused, as a member of the Reserve Force, was “subject to the Code of Service Discipline” at the time of the transaction alleged in the charge. It follows that this court does not have personal jurisdiction over the accused. FOR THESE REASONS, THE COURT: [18] ALLOWS the plea in bar in respect of the first and only charge in the charge sheet. Counsel: Major A.-C. Samson, Canadian Military Prosecution Services Co-counsel for Her Majesty the Queen

Captain K. Lacharité, Canadian Military Prosecution Services Co-counsel for Her Majesty the Queen Major S.L. Collins, Directorate of Defence Counsel Services Co-counsel for Second Lieutenant A. Balint Major A. Reed, Directorate of Defence Counsel Services Co-counsel for Second Lieutenant A. Balint Captain K. Rudderham, Assistant Judge Advocate General Western Assistant Counsel for Second Lieutenant A. Balint