R v Wilcox, 2011 CM 3002

Source: Unknown Canadian court (cm)

Date: 2011-04-27

Jurisdiction: Federal

Docket: 201061

Citation: 2011 CM 3002

Opinion

COURT MARTIAL Citation: R v Wilcox, 2011 CM 3002 Date: 20110427 Docket: 201061 Standing Court Martial Halifax Court Room Halifax, Nova Scotia, Canada Between: Her Majesty the Queen - and - ex-Corporal M.A. Wilcox, Accused Before: Lieutenant-Colonel L.-V. d'Auteuil, M.J. REASONS ON APPLICATION MADE BY THE ACCUSED FOR A PLEA IN BAR CONCERNING THE FIRST CHARGE ON THE CHARGE SHEET (Orally) [ 1 ] Corporal Wilcox is charged with one offence punishable under

section 130 of the National Defence Act for manslaughter contrary to

section 236 (

a) of the Criminal Code , with one offence also punishable under

section 130 of the National Defence Act for criminal negligence causing death contrary to

section 220 (

a) of the Criminal Code , and with one offence for negligently performing a military duty contrary to

section 124 of the National Defence Act . All these offences relate to an incident that allegedly occurred on or about 6 March 2007 in Kandahar, Afghanistan. [ 2 ] By way of an application made to this Standing Court Martial pursuant to subparagraph 112.05(5)(

b) of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), Corporal Wilcox is seeking an order from the presiding military judge finding that this court has no jurisdiction to try him on the first charge, the charge of manslaughter on the charge sheet, Exhibit 2. [ 3 ] The evidence on the application, heard in a voir dire that I opened, consisted of:

a. the testimony heard of Major Richards, appellate counsel with the Director of Military Prosecutions; b. Exhibit VD1-1, the written notice of application made by the accused; c. Exhibit VD1-2, the Court Martial Appeal Court of Canada’s order concerning Corporal Wilcox's appeal and dated 18 October 2010; d. Exhibit VD1-3, the convening order concerning the General Court Martial of Corporal Wilcox, dated 17 October 2008; e. Exhibit VD1-4, the charge sheet concerning the General Court Martial of Corporal Wilcox, dated 21 July 2008; f.

Exhibit VD1-5, pages 5535 and 5536 of the transcript of the General Court Martial of Corporal Wilcox; g. Exhibit VD1-6, a question put in writing by panel members, identified as Exhibit 89 in the General Court Martial of Corporal Wilcox; h. Exhibit VD1-7, pages 5541 to 5552 of the transcript of the General Court Martial of Corporal Wilcox; i. Exhibit VD1-8, pages 5552 and 5553 of the transcript of the General Court Martial of Corporal Wilcox; j.

Exhibit VD1-9, a copy of the appellant and respondent’s joint memorandum concerning final resolution of the appeal; and k. the judicial notice taken by the court of the facts and issues under Rule 15 of the Military Rules of Evidence. [ 4 ] On the exact same set of charges, Corporal Wilcox was previously found guilty in 2009 by a General Court Martial held in Sydney, Nova Scotia, of criminal negligence causing death and of negligently performing a military duty.

The charge for manslaughter was stayed by the court considering that it was an alternative charge to the one of criminal negligence causing death for which he was found guilty.

On 30 September 2009 the military judge presiding at the General Court Martial of Corporal Wilcox imposed a sentence of four-years' imprisonment and dismissal from Her Majesty’s service. [ 5 ] Corporal Wilcox appealed the legality of the findings of the General Court Martial as well as the severity of the sentence imposed by the military judge. [ 6 ] In October 2010 the appellate counsel for the Canadian Military Prosecution Service conceded one ground of the appeal, which was about the discretionary jurisdiction of the presiding military judge regarding the number of General Court Martial panel members.

Then a joint memorandum concerning the final resolution of the appeal made by Corporal Wilcox was filed with the Court Martial Appeal Court requesting an order that Corporal Wilcox’s appeal respecting the legality of the finding be allowed, that the finding of the General Court Martial be set aside, and that a new trial by court martial on all the charges be directed in accordance with the Court Martial Appeal Court’s authority pursuant to

section 238 of the National Defence Act . [ 7 ] During his testimony, Major Richards, who was the appellate counsel for the Canadian Military Prosecution Service and involved in the presentation of the joint memorandum, conceded that he was unaware of the Court Martial Appeal Court decision in Deneault and the limitation discussed in it about

section 238 of the National Defence Act . [ 8 ] Then, on 18 October 2010 the Court Martial Appeal Court, (See R v Wilcox , 2010 CMAC 534 ), issued an order in relation to that matter, which reads as follows:

Whereas the appellant was convicted by a General Court Martial of criminal negligence causing death contrary to the Criminal Codeand negligently performing a military duty contrary to the National Defence Act; Whereas, as a result, the manslaughter charge was stayed; Whereas the parties agree that the military judge erred in concluding that he had no discretion to replace a member of the sitting panelby an alternate member who was present and could satisfy the requirements of subsection 167(1) of the National Defence Act that theGeneral Court Martial be composed of a panel of five members; Whereas the parties agree that the trial commenced and held by a panel of only four members “had at least a potentially substantialeffect on the fairness of the trial” and, therefore, that a new trial is warranted: see joint memorandum concerning final resolution of theappeal, October 8, 2010 at paragraph 7; Whereas

section 238 of the National Defence Act as interpreted by this Court in R. v.

Deneault, (CMAC), 5C.M.A.R. 182, at pages 197-198, requires that the new trial be directed on the charges for which the findings are found to be illegal and,as a result, set aside; IT IS HEREBY ORDERED THAT: On consent, the appeal is allowed, the guilty findings of the General Court Martial against the appellant on charges of criminalnegligence causing death contrary to the Criminal Code and negligence performance of a military duty contrary to the National DefenceAct are set aside and a new trial on these two charges is directed before a General Court Martial presided over by a military judge otherthan Lamont J. [9] Further to that decision, Major Richards discussed the impact of the Deneault decision.

No appeal was made regarding thatdecision and no clarification was then requested to the Court Martial Appeal Court. Essentially, it was considered by Major Richardsthat the court did what it could do to the extent permitted by

section 238 of the National Defence Act regarding the charges of criminalnegligence causing death contrary to the Criminal Code and negligence performance of a military duty contrary to the National DefenceAct. [10] On 14 February 2011 the Court Martial Administrator convened a Standing Court Martial in relation to the charges set out in acharge sheet dated 29 October 2010 and referring to the same three charges for which Corporal Wilcox was previously tried before aGeneral Court Martial in 2009.

This charge sheet was signed by the Director of Military Prosecutions. [11] On the day convened for this Standing Court Martial, which is on 26 April 2011, before entering a plea on the three charges, thedefence counsel for the accused requested, on behalf of the accused, this court to issue an order finding that the court has no jurisdictionto try the first charge on the charge sheet, which is the charge of manslaughter. [12] The defence counsel takes the position that this Standing Court Martial has jurisdiction only over the second and third charges onthe charge sheet because the Court Martial Appeal Court decision to order a new trial only on charges of criminal negligence causingdeath contrary to the Criminal Code and negligence performance of a military duty contrary to the National Defence Act is loud and clearand cannot suffer any other

interpretation. According to defence counsel, the Court Martial Appeal Court considered the context,including the fact that the manslaughter charge was stayed by the General Court Martial, and its limited authority to direct a new trialonly on the hearing of an appeal respecting the legality of a finding of guilty on any charge as set out at

section 238 of the NationalDefence Act and finally interpreted that provision in accordance with its own decision in Deneault. [13] To the contrary, as a matter of logic and fairness, the prosecutor is of the opinion that the Court Martial Appeal Court made itsdecision regarding the second and third charge on the charge sheet as it is authorized by

section 238 of the National Defence Act to do so,but never commented on what should have been done with the charge of manslaughter. Essentially, the prosecutor submits to this courtthat the stay pronounced by the General Court Martial on that charge was a conditional stay because it was, and still is, an alternativecharge of equal seriousness to the one of criminal negligence causing death contrary to the Criminal Code.

[ 14 ] Then, by ordering a new trial on the charge of criminal negligence causing death contrary to the Criminal Code , implicitly the Court Martial Appeal Court also ordered a new trial on the manslaughter charge that was stayed. [ 15 ] According to the prosecution, this concept of conditional stay was developed in various law cases but clearly established by the Alberta Court of Appeal decision in Terlecki , (See R v Terlecki , 1983 ABCA 87 ).

In that decision, the court said at paragraph 25: Therefore, unless there is reason to the contrary, the Court should indicate whether the accused is guilty of both charges. If found guilty then a conviction should be entered on the more serious charge and a conditional stay on the less serious. If both charges are of equal seriousness, then a conviction should be entered on one and a conditional stay on the other.

We say a conditional stay for the condition should be that the stay is only for the period until the charge on which the accused has been found guilty is finally disposed of on appeal or by the expiration of time for appeal. Ultimately if the conviction becomes final the accused would be entitled to a certificate of acquittal on the other charge. [ 16 ] This perspective comes from the

interpretation an appeal court should give to its authority to make any order that justice requires under subsection 686(8) of the Criminal Code , including ordering a full new trial on all charges, which mean also those stayed at the trial level. [ 17 ] To sum up, the prosecution takes the position that the Court Martial Appeal Court had no jurisdiction to deal with the charge of manslaughter which was conditionally stayed and it sought no submission or direction on the wording of its order.

In addition, the Court Martial Appeal Court did not order that a new trial could not proceed on the manslaughter charge. [ 18 ] Then, considering that the manslaughter charge is alternative to the charge of criminal negligence causing death, the prosecution concludes that the Court Martial Appeal Court, by ordering a new trial on the latter, has implicitly also ordered a new trial on the manslaughter charge and that this court has jurisdiction to try the accused on that charge. [ 19 ] Reality is that if we are here today, it is because the Court Martial Appeal Court ordered a new trial on charges of criminal negligence causing death contrary to the Criminal Code and negligent performance of a military duty contrary to the National Defence Act .

This appellate court was fully aware of its limitation and authority pursuant to the National Defence Act to deal with a charge stayed by a court martial because it referred to it in its order and also mentioned how to deal with it by referring to the Deneault decision. [ 20 ] If the Court Martial Appeal Court would have considered that it had a discretionary power to order a new trial on all charges, including the manslaughter charge, because justice required it, it would have done so explicitly.

I am also of the opinion that it is up to the latter to decide if things can be done implicitly when issuing an order, not to this court. [ 21 ] It also appears to me that paragraph 112.80(1) of the QR&O indicates clearly that the approach taken in the military justice system about a stay of proceedings on a charge is the effect of an acquittal, and that Parliament has not considered to allow to the Court Martial Appeal Court any authority to order a new trial for a charge on which a stay of proceedings has been directed by a court martial.

In the absence of any statutory authority given to the Court Martial Appeal Court to do such thing or to make any order of such nature that justice requires, I don’t see how it could be said that our appellate court had authority to order a new trial on the manslaughter charge. [ 22 ] I disagree with the prosecutor about the fact that the concept of a conditional stay must be extended to the military justice system.

This concept was developed in a different legal framework and I do not see any similarity between the criminal justice system and the military justice system that would justify such use. [ 23 ] The prosecutor also asked this court to fill the gaps in the National Defence Act concerning the lack of authority for the Court Martial Appeal Court to order a new trial on a charge for which a stay of proceedings was directed, and he asked this court to do this by dismissing this application; so, basically, by saying that this court has jurisdiction on the first charge.

I would like to say that this is not the intent of this court to usurp in any way the role and authority of Parliament on that matter. Essentially, it appears to me that what the prosecution asked this court is to do something that the Court Martial Appeal Court is not allowed to do.

[ 24 ] The language used by the Court Martial Appeal Court in its order is clear and this court has no other choice than to grant the application. [ 25 ] It is the decision of this court that it has no jurisdiction to try the accused on the first charge on the charge sheet. FOR THESE REASONS, THE COURT: [ 26 ] GRANTS the application presented by the accused [ 27 ] FINDS that this Standing Court Martial has no jurisdiction to try the accused on the first charge on the charge sheet. [ 28 ] ORDERS that this Standing Court Martial tries the accused on the second and third charges on the charge sheet.

Counsel: Commander R. Fetterly and Major A. Tamburro, Canadian Military Prosecution Service Counsel for Her Majesty the Queen Lieutenant-Colonel D.T. Sweet, Directorate Defence Counsel Services, and Mr. D. Bright, BoyneClarke, 99 Wyse Rd, Suite 600, Halifax, Nova Scotia, B3A 4S5 Counsel for ex-Corporal M.A. Wilcox

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