R v Wehmeier, 2012 CM 1007

COURT MARTIAL Citation: R v Wehmeier, 2012 CM 1007 Date: 20120610 Docket: 201212 Standing Court Martial 19 Wing Comox British Columbia, Canada Between: Her Majesty the Queen - and - Paul Wehmeier, Applicant Before: Colonel M. Dutil, C.M.J. Restriction on publication: By court order made under

section 179 of the National Defence Act and

section 486.4 of the Criminal Code , information that could disclose the identity of the person described in this judgment as the complainant shall not be published in any document or broadcast or transmitted in any way. DECISION RESPECTING AN APPLICATION THAT THE DECISION OF THE DIRECTOR OF MILITARY PROSECUTIONS TO PREFER CHARGES AGAINST THE ACCUSED, A CIVILIAN SUBJECT TO THE CODE OF SERVICE DISCIPLINE AT THE TIME OF THE ALLEGED OFFENCES, WAS ARBITRARY AND NOT WITHIN THE PURPOSE OF THE LEGISLATIVE SCHEME, WHICH AMOUNTS TO AN ABUSE OF PROCESS IN VIOLATION OF THE RIGHTS OF THE ACCUSED UNDER

SECTION 7 OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS (Orally) INTRODUCTION

[ 1 ] Further to the rulings of this court that firstly denied a plea in bar of trial made under

article 112.24 of the Queen's Regulations and Orders for the Canadian Forces (QR&

O) that this court had no jurisdiction and secondly denied an application made under subparagraph 112.05(5)(

e) of the QR&O that sections 60(1)(

f) and 61(1)(

b) of the National Defence Act were constitutionally invalid, the applicant has made a further application under

article 112.05(5)(

e) of the QR&O that the decision to prefer the charges against the accused by the Director of Military Prosecutions violates

section 7 of the Canadian Charter of Rights and Freedoms (The Charter) because it engages the applicant's liberty interests in a manner that is not in accordance with the principles of fundamental justice. THE EVIDENCE [ 2 ] The evidence before this court consists of the following:

a) the matters for which the court has taken judicial notice pursuant to

section 15 of the Military Rules of Evidence ;

b) the admission by the respondent that, "Mr Wehmeier was repatriated from Germany back to Canada on 24 March 2011";

c) the Record of Disciplinary Proceedings dated 18 August 2011 signed by A.D. Sadler, Warrant Officer (Exhibit M3-2);

d) the charge sheet dated 16 February 2012 by Major Dylan Kerr, an officer authorized to do so under the National Defence Act (Exhibit M3-3);

e) the documentary evidence filed by consent, namely: (

i) excerpts from the House of Common Debates Official Report, First Session — Twenty-Second Parliament, Volume II 1953- 54, concerning the purpose of clause 10 - Definition of "persons accompanying Canadian Forces", 11 February 1954 (Exhibit M3-4); (ii) excerpts from Minutes of Proceedings and Evidence No. 2, 24 May 1950 Report for the Special Committee on Bill 133, An Act Respecting National Defence, Session 1950, House of Commons (Exhibit M3-5); (iii) an email dated 5 June 2012 from Lieutenant-Commander M. Létourneau to Major R.D.

Kerr requesting to refer Mr Wehmeier's case to civilian authorities and the response provided, (Exhibit M3-6); (iv) an email dated 5 June 2012 from Lieutenant-Commander M. Létourneau to Major R.D. Kerr requesting disclosure of any information governing the decision to prefer charges against Mr Wehmeier as opposed to referring the matter to civilian authorities and the response provided (Exhibit M3-7); (

v) a letter dated 18 August 2011 signed by Lieutenant-Colonel D.P. Boyle, Commanding Officer SLOC Det DEU to Commander Canadian Operational Support Command entitled, "Application for Disposal by Referral Authority Regarding Charges Laid Against Hans P. Wehmeier" (Exhibit M3-8); (vi) a letter dated 19 August 2011 signed by Major-General M.E. McQuillan, Commander Canadian Operational Support Command, to NDHQ OTTAWA/DMP entitled "Disciplinary Proceedings Against H.P. Wehmeier" (Exhibit M3-9); (vii) the Director of Military Prosecutions Service Policy Directive 002/99, updated 18 March 09, re: Pre-Charge Screening (Exhibit M3-10);

(viii) the Director of Military Prosecutions Service Policy Directive 003/99, updated 18 March 09 re: Post-Charge Review (Exhibit M3-11); (ix) a memorandum signed by J.A.M. Léveillée, Lieutenant-Colonel, ADMP dated 9 September 2011 entitled, "Assignment of File Wehmeier H.P" (Exhibit M3-12); and

f) the testimonies of the witnesses heard during the plea and bar of trial; namely, Warrant Officer Vincent and Captain Piché. All the evidence provided to the court for the purposes of this application was filed by consent of the parties. The Facts [ 3 ] Mr Wehmeier is charged for having committed three services offences while he was accompanying a unit of the Canadian Forces in Germany to perform his duties, as a civilian employee, of Peer Educator.

The charge sheet (Exhibit M3-3) dated 16 February 2012 by Major Dylan Kerr, an officer authorized to do so under the National Defence Act , reads as follows: "The accused, Paul Wehmeier, Director Casualty Support Management, Canadian Forces, is charged with having committed the following offences: FIRST CHARGE,

SECTION 130 OF THE NATIONAL DEFENCE ACT , AN OFFENCE PUNISHABLE UNDER

SECTION OF THE NATIONAL DEFENCE ACT , THAT IS TO SAY, SEXUAL ASSAULT, CONTRARY TO

SECTION 271 OF THE CRIMINAL CODE. Particulars: In that he, on or about 19 March 2011, at Bitburg, Germany, while employed as a Peer Educator, did commit a sexual assault upon S.R. SECOND CHARGE,

SECTION 130 OF THE NATIONAL DEFENCE ACT , AN OFFENCE PUNISHABLE UNDER

SECTION 130 OF THE NATIONAL DEFENCE ACT , THAT IS TO SAY, UTTERING THREATS, CONTRARY TO PARAGRAPH 264.1(1)(

A) OF THE CRIMINAL CODE. Particulars: In that he, on or about 19 March 2011, at Bitburg, Germany, while employed as a Peer Educator, did knowingly utter a threat to Corporal Kimberly Caldwell to cause death to Corporal Kimberly Caldwell. THIRD CHARGE,

SECTION 130 OF THE NATIONAL DEFENCE ACT , AN OFFENCE PUNISHABLE UNDER

SECTION 130 OF THE NATIONAL DEFENCE ACT , THAT IS TO SAY, ASSAULT, CONTRARY TO

SECTION 266 OF THE CRIMINAL CODE. Particulars: In that he, on or about 19 March 2011, at Bitburg, Germany, while employed as a Peer Educator, did commit an assault upon Corporal Daniel Lessard." [ 4 ] The record of the testimonial evidence heard during the plea and bar of trial was accepted by counsel to be used in this application.

Warrant Officer Vincent testified that in March 2011 he was employed as a member of the Second Line of Communications Detachment (SLOC Det), which he described as a unit that was stood up to provide Home Leave Travel Assistance (HLTA) for military personnel coming out from Kandahar Airfield, Afghanistan, as well as being the main centre for Technical Assistance Visits (TAVs). He was stationed in Germany at Spangdahlem Air Force Base, accommodated in the Eiffel Inn Towers on base and ran by the US Air Force.

He stated that they were between 45 to 50 personnel spread in three locations; namely, Spangdahlem, Bitburg, for about 25 persons and Trier, 12 to 15. Warrant Officer Vincent explained that the SLOC Det was also involved with the Out of Cycle TLD (Third Location Decompression Center) in Trier for people coming out of Afghanistan who had to do a five-day stay to decompress and take courses and classes on how to reintegrate with families and the workplace in Canada.

[ 5 ] Warrant Officer Vincent would process the claims for the people on their arrival in Spangdahlem and the meal claims every 15 days. He was also responsible for the day to day administration of the personnel in place. Warrant Officer Vincent stated that the personnel in place were both military and civilian. As to these civilians, they were composed of PSP Personnel and Mental Health Specialists.

With regard to his role concerning these civilians, Warrant Officer Vincent stated that his team was just administering where they would be living and abide by the SLOC Det rules depending where they would be located either in Spangdahlem, Bitburg or Trier or a combination of these locations. Warrant Officer Vincent testified that he would normally make these arrangements because he was the point of contact for the three hotels and that they, meaning the Department of National Defence or the Canadian Forces, would pay for the accommodations.

He further stated that he would also administer the routine orders, which he said applied to the civilians. [ 6 ] Warrant Officer Vincent testified that Mr Wehmeier was employed as a Peer Educator in Trier, Germany. According to him, the Peer Educators were accommodated in a hotel in Trier that had been contracted by CANOSCOM and administered by SLOC Det. As to Mr Wehmeier, Warrant Officer Vincent said that Mr Wehmeier's hotel accommodation was paid directly by the Canadian Forces after they had received the invoice and certified that the services had been rendered.

The invoices were then sent to Ottawa for payment. Mr Wehmeier's travel arrangements to and from Germany were made by the Canadian Forces or the Department of National Defence. Rations were not provided to Mr Wehmeier, as he was treated pursuant to the applicable per diem Treasury Board guidelines for meal entitlement on temporary duty. This statement was corroborated by Captain Piché. [ 7 ] Captain Piché was a member and supervisor of a mental health team during March 2011 for decompression of troops coming back from Afghanistan.

To her knowledge, the accommodation arrangements were dictated by the Deputy Commanding Officer of SLOC Det, although she provided input as to where they should be staying, and the process was usually initiated by the chief clerk or the orderly room. Captain Piché testified that during that period she reported to the DCO of SLOC Det, Major Gilbert, who had been also the acting Commanding Officer during the absence of Lieutenant-Colonel Boyle. Captain Piché testified that the Peer Educators could not decide where they would stay while in Germany.

They would be on a claim and stay where the services would be provided. As a supervisor, she would follow the applicable policies, directives and directions and she would communicate them to her team members. Captain Piché further testified that Mr Wehmeier, as part of her team, stayed at the Park Plaza Hotel located in Trier, Germany, further to the arrangements made by the chief clerk, Warrant Officer Vincent, and two corporals that worked for him. [ 8 ] It is alleged that during the evening of 19 March 2011, Mr Wehmeier spent the evening at the Bitburg Beeferst, in Bitburg, Germany.

He would have been in the company of military members and one civilian member of the SLOC Det staff. During that evening, the accused would have made gestures and comments to three service persons that led to the charges before the court. He was repatriated to Canada very shortly after; that is, on 24 March 2011. Five months after his return to Canada, on 18 August 2011, a Record of Disciplinary Proceedings was signed by Warrant Officer A.D. Sadler with regard to the stated incidents and immediately referred the matter to a higher authority (see Exhibit M3-2).

In the application for disposal by referral authority dated also on 18 August 2011 (Exhibit M3-8), the Commanding Officer of the SLOC Det DEU, Lieutenant-Colonel Boyle, asked the Commander Canadian Operational Support Command (Comd CANOSCOM ) that the matter be referred to the Director of Military Prosecutions for trial by court martial.

In this letter, he makes the following comments: "I submit that in addition to having jurisdiction under the CSD to proceed against the Accused for the alleged offences, it is in the public interest to proceed with the charges laid within the military justice system due to the serious nature of the alleged offences, the negative impact the alleged threat had on the victim, and the fact that the alleged offences occurred in a deployed setting while the accused was embedded with the CF and involved CF members with whom the Accused was co-located.

It is my recommendation that this matter be referred to the military prosecutions." [ 9 ] The following day, 19 August 2011, Comd CANOSCOM applied to the Director of Military Prosecutions recommending that the charges be tried by court martial as soon as possible for the reasons expressed by the CO SLOC Det, Germany (Exhibit M3-9).

On 16 February 2012, a charge sheet was signed by the Director of Military Prosecutions (Exhibit M3-3) and preferred by him on 20 February 2012 that resulted in the convening order for this Standing Court Martial on 23 April 2012 (Exhibit 1 in the main proceedings). [ 10 ] At the beginning of the court martial proceedings on 29 May 2012, counsel for the defence made a plea in bar of trial that this court had no jurisdiction.

On 1 June 2012, the court concluded that it was satisfied that Mr Wehmeier was subject to the Code of Service Discipline at the time of the alleged offence as a person accompanying a unit or other element of the Canadian Forces and ultimately subject to the Code of Service Discipline at the time of the alleged offences. On 4 June 2012, counsel for the defence made an application challenging the constitutionality of sections 60(1)(

f) and 61(1)(

b) of the National Defence Act to the effect that they violate the accused's rights under

section 7 of the Charter because these sections were overbroad. On 6 June 2012, the court denied the application and noted that without these provisions, a person who is accommodated by a unit or other element of the Canadian Forces could only be tried by a competent tribunal of a foreign country, without the protection of the legal rights available under the Charter and the clear intent of Parliament that Canada will exercise primary jurisdiction over Canadian Forces personnel and persons accompanying them abroad. After a careful review of sections 60(1)(

f) and 61(1)(

b) of the Act in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act , and the intention of Parliament that was provided to the court through the reading of the House of Common Debates in support of the amendment that would become section 61(1)( b ), the court concluded that the applicant had not met its burden of proof that the provisions were overbroad and that some applications of these provisions would be arbitrary and disproportionate.

[ 11 ] On 5 June 2012, counsel for the defence sent two requests to the prosecutor by emails before the court's ruling. The first email (Exhibit M3-6) consisted of a formal request that Mr Wehmeier's case be referred to the civilian authorities, whereas the second email (Exhibit M3-7) requested disclosure of the governing decision to prefer the charges against Mr Wehmeier as opposed to referring the matter to civilian authorities. The prosecution refused to provide any information relying on the basis of prosecutorial discretion and not a matter for review by the court.

The prosecutor also invoked solicitor-client privilege in support of his decision. In response to the first email (Exhibit M3-6), the prosecutor replied: "Thank you for your request. This matter is now before a court of competent jurisdiction. The case has been prepared, and the witnesses have been gathered and prepared. The appropriate time to have had these discussions was after the charges were laid and before the preferral, or at the least, in the preferral stage. It has been nearly four months since the charges were preferred, and we have been in court for two weeks on this matter.

At this time I do not believe it is in anyone's interest to withdraw the charges and refer them to a civilian court." [ 12 ] Further to these events; namely, the emails and the decision of the court with regard to the constitutionality of these provisions, the applicant made, on 6 June 2012, the application that is the subject of this decision to the effect that by preferring charges against the accused, a civilian subject to the Code of Service Discipline at the time of the alleged offences, the prosecution violated the rights of Mr Wehmeier under

section 7 of the Charter in a manner not in accordance with the principles of fundamental justice because it is arbitrary and the effect of that decision is disproportionate on the applicant. The applicant has raised that the prosecution's conduct amounts to an abuse of process and he asked this court to order a stay of proceedings as the proper remedy under section 24(1) of the Charter. POSITION OF THE PARTIES The Applicant [ 13 ] As the court has just stated, the applicant submits that by preferring charges against the accused, a civilian subject to the Code of Service Discipline at the time of the alleged offences, violated the rights of Mr Wehmeier under

section 7 of the Charter in a manner not in accordance with the principles of fundamental justice; more specifically, that the manner in which the prosecution exercised his discretion to prefer charges amounts to an abuse of process. The applicant asked this court to order a stay of proceedings as the proper remedy under section 24(1) . [ 14 ] The applicant submits that the decision of the Director of Military Prosecutions to prefer charges and proceed before a court martial as opposed to referring the matter to civilian authorities as provided by

section 273 of the National Defence Act engages the liberty interests of the applicant under

section 7 of the Charter for two main reasons: a. it is arbitrary; and b. the effect of that decision is disproportionate on the applicant. [ 15 ] The applicant relies on the recent decisions of the Supreme Court of Canada in Canada (Attorney General) v PHS Community Services Society , 2011 SCC 44 , [2011] 3 S.C.R. 134 and R v Nixon , 2011 SCC 34 , [2011] 2 S.C.R. 566. Based on the test expressed by the Supreme Court in PHS Community Services Society concerning whether a law's application is arbitrary, counsel for the applicant submits the decision of the Director of Military Prosecutions to prefer charges against the accused does not meet the primary objectives of section 61(1)(

b) of the National Defence Act as they were expressed by this court in its previous ruling. According to the applicant, the purpose of that

section when read in conjunction with

section 273 of the Act aims to protect civilians who accompany the Canadian Forces from foreign penal jurisdiction when they are abroad and afford the same legal protections to them as other Canadians citizens in Canada, more importantly in the case at bar when the applicant is back in Canada. [ 16 ] The applicant reminds the court of its previous ruling to the effect that in striking this balance,

section 273 of the Act is paramount to the exercise of jurisdiction in the context of the legislation and its intended purpose that civilians not be tried by service tribunals unless it is absolutely essential or in the interests of the civilians themselves that they do so. Counsel for the applicant then attempted to identify the relationship between the state interest and the decision of the Director of Military Prosecutions to prefer charges against Mr Wehmeier. He notes that the evidence indicates that Mr Wehmeier was repatriated to Canada on 24 March 2011; that the

prosecutor may have read and consider the comments made by the commanding officer in his letter referring the matter to higher authority (M3-8); and that the charge sheet was signed on 16 February 2012 and ultimately preferred. Counsel for the applicant points to the absence of evidence that would explain the rationale used by the Director of Military Prosecutions not to refer this matter to civilian authorities, including in Exhibit M3-6 and M3-7.

The applicant submits that the absence of such evidence on the record is relevant to the determination of this applicant as expressed in R v Nixon , 2011 SCC 34 , [2011] 2 S.C.R. 566, at paragraph 63 . [ 17 ] The applicant submits that because he is in Canada and has been since shortly after the alleged events, there is no necessity to protect him from foreign penal jurisdiction and that

section 273 provides jurisdiction to the civilian courts. Moreover, the applicant submits that the impugned decision of the Director of Military Prosecutions to have him tried by court martial is inconsistent with and does not relate to his protection from foreign penal jurisdiction. As a consequence, that decision is arbitrary. Counsel for the applicant mentioned that they have made several requests to the Director of Military Prosecutions to have this case referred to civilian authorities, including after the court's ruling as to the constitutionality of sections 60(1)(

f) and 61(1)(

b) of the Act . He submits that these refusals run contrary to the purpose of the legislative scheme and the Director of Military Prosecutions' internal policies on pre- and post-charge screening (see Exhibits M3-10 and M3-11). The applicant submits that the decision of the Director of Military Prosecutions is disproportionate on Mr Wehmeier because its effects would result in him being tried by a court martial as opposed to ordinary criminal courts, where he could elect to be tried by a jury, have the benefit of being tried for

summary conviction offences and deprived of a sentencing regime that would not be limited to imprisonment and a fine, such as the availability of conditional sentences, probation as well as conditional or absolute discharge. The applicant submits that these effects are grossly disproportionate to the state interests in these circumstances. Finally, the applicant submits that should the court grant this application, the appropriate remedy would be a stay of proceedings under section 24(1) of the Charter .

The Respondent [ 18 ] The prosecution submits that not only has the applicant not provided an evidentiary basis for his application; the decision of the Director of Military Prosecutions to prefer charges against Mr Wehmeier is a matter of prosecutorial discretion which can not be subject to review by this court. Counsel for the prosecution states that Mr Wehmeier was subject to the Code of Service Discipline at the time of the alleged offences. He is therefore liable to be charged, tried and dealt with under the Code. By virtue of

section 173 this court has jurisdiction in the matter. [ 19 ] Counsel for the prosecution strongly opposes this application. According to him, there is no threshold evidence of any abuse of process by the Director of Military Prosecutions in preferring these charges against Mr Wehmeier. Because Mr Wehmeier is subject to the Code, the Director of Military Prosecutions has prima facie authority to prosecute Mr Wehmeier. He cannot be partly subject to the Code. The respondent's submissions are threefold.

The first is that there is no evidence of abuse of process; the second is that the military justice system has changed since 1953 and the exercise of the Director of Military Prosecutions' discretion is not bound by the House of Commons debates at that time; and third, that a Standing Court Martial is a fair and impartial tribunal. [ 20 ] The respondent submits that there is no evidence of abuse of process but rather this application is first and foremost an attack on the Director of Military Prosecutions' exercise of prosecutorial discretion.

He argues that the decision as to whether a prosecution should be brought falls squarely within the core of that discretion. The respondent relies on the decisions of the Supreme Court in Canada in Krieger v Law Society (Alberta) , 2002 SCC 65 , [2002] 3 S.C.R. 372 at paragraph 46 ; and R v Nixon , 2011 SCC 34 , [2011] 2 S.C.R. 566, at paragraph 30 . The respondent argues that prosecutorial discretion is reviewable by the court only where it amounts to an abuse of process ( Nixon , at paragraph 31 ).

Within the core of prosecutorial discretion, the courts cannot interfere except in such circumstances of flagrant impropriety ( Krieger , at paragraph 49 ). The respondent is adamant that absent proof of prosecutorial misconduct, improper motive or bad faith, the decision to proceed with the prosecution is the Crown's alone to make, ( Nixon , at paragraph 68 ). He argues that there is no evidence whatsoever to suggest improper motives or bad faith in this case and that the words of the Associate Minister of National Defence before the House of Commons in 1953 cannot create such an inference (Exhibit M3-4).

In addition, he further submits that the Director of Military Prosecutions is in no way bound by the rationale provided by the Associate Minister of National Defence before the House of Commons in 1953 when they exercise their prosecutorial discretion for cases involving persons subject to the Code of Service Discipline by virtue of the application of sections 60(1)(

f) and 61(1)(

b) of the Act . [ 21 ] The respondent submits that the modernization of the National Defence Act in recent years made irrelevant the comments made by the Associate Minister in 1953. He argues that the application was brought in response to the court's ruling earlier in the week with respect to the constitutionality of section 61(1)(

b) and in large part, based on the court's

interpretation of statements made by the Associate Minister of National Defence before the House of Commons when that provision was being added to the Act . Counsel for the prosecution notes that the military justice system has changed greatly since the 1953/1954 debates on which the applicant relies.

The respondent suggest that the various changes to the Act in recent years imply that Parliament has turned its mind to issues of limits of jurisdiction and the limits of the exercise of jurisdiction by service tribunals. [ 22 ] Counsel for the prosecution submits that to determine whether or not the Director of Military Prosecutions has abused its authority it must take into account where the military justice system is today and consider whether or not the comments made by the

Associate Minister in 1953 are still even relevant, the effect to which those comments should affect the exercise of that discretion todayin 2012. He submits that Parliament has turned its mind specifically to the trial of civilians by service tribunals as recently as Bill C-60in 2008. The respondent argues that the statement from the 1953/54 House of Commons debates cannot be used to alter the plain readingof the legislative provision so as to lead to a serious limitation on the scope of the prosecutorial discretion or to a conclusion of an abuseof process in this matter.

Counsel for the respondent suggests that the exercise of prosecutorial discretion as to prefer a charge does notdiffer in any way whether the person subject to the Code of Service Discipline would be captured by section 60 (1)(

a) of the Act, beingan officer or non-commissioned member of the Regular Force; or a person accompanying a unit or other element of the Canadian Forcesabroad in specific circumstances under section 61(1)(b). In

summary, if the Director of Military Prosecutions has that authority and thiscourt is a fair and impartial tribunal which has jurisdiction, then bringing that matter before the court is prima facie proper, therefore thecourt should deny this application. DECISION Legal Analysis [23] In my previous ruling on the constitutionality of sections 60(1)(

f) and 61(1)(1)(

b) of the National Defence Act, I reiterated theremarks of Chief Justice Lamer in R v Généreux, (SCC), [1992] 1 S.C.R. 259, on the purpose of the Code of ServiceDiscipline at paragraph 31, where he stated, in part: Although the Code of Service Discipline is primarily concerned with maintaining discipline and integrity in the Canadian Armed Forces,it does not serve merely to regulate conduct that undermines such discipline and integrity. The Code serves a public function as well bypunishing specific conduct which threatens public order and welfare.

Many of the offences with which an accused may be charged underthe Code of Service Discipline, which is comprised of Parts IV to IX of the National Defence Act, relate to matters which are of a publicnature. For example, any act or omission that is punishable under the Criminal Code or any other Act of Parliament is also an offenceunder the Code of Service Discipline. Indeed, three of the charges laid against the appellant in this case related to conduct proscribed bythe Narcotic Control Act.

Service tribunals thus serve the purpose of the ordinary criminal courts, that is, punishing wrongful conduct,in circumstances where the offence is committed by a member of the military or other person subject to the Code of Service Discipline.... [24] The court also stressed the importance of the modern principle of statutory

interpretation expressed by Iacobucci and ArbourJJ. in Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42 , [2004] 2 S.C.R. 248, at paragraph 34: The modern principle of statutory

interpretation requires that the words of the legislation be read "in their entire context and intheir grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”....The modern approach recognizes the multi-faceted nature of statutory

interpretation. Textual considerations must be read in concert withlegislative intent and established legal norms. [25] The court rejects the submissions made the respondent to the effect that the modernization of the military justice system inrecent years has evacuated the original purpose and objective of sections of the National Defence Act that were not amended or modifiedby legislative changes. New legislation is often drafted to meet specific purposes and promote new objectives dictated by socialchanges. These changes may or may not take into account the purpose and objectives of previous enacted sections.

The legislative-making process is a complex exercise and it is very difficult to cover all potential issues that may arise. When perceived anomalies arediscovered, is it for the courts to review them and provide judicial

interpretation. [26] In the previous ruling, the court generally agreed with the comments made by counsel with regard to the purpose andobjective of sections 60(1)(

f) and 61(1)(

b) as they were expressed by the Associate Minister of the Department of National Defence on11 February 1954 (Exhibit M3-4), namely that persons accompanying the forces should be subject to some law at all times; and that theinherently dangerous nature of military activities made it essential that the close control be exercisable by the military authorities over allpersons participating in those activities and that the government was trying to create the maximum jurisdiction under all existingagreements and laws that Canada could acquire to ourselves in regard to the people abroad.

The court also noted that counsel hadomitted what the court considered an essential element that was clearly expressed by Mr Campney at paragraph 3 of page 2010 of theDebates (Exhibit M3-4): "The arrangements made by Canada with a number of the countries in which our forces are or may be stationed enable Canadian criminallaw and procedures to be applied in respect of persons accompanying our forces as an alternative to having the criminal law andprocedures of the country in which an alleged offence has been committed applied. In order to secure the benefits of these arrangements

we must not only be in a position — I think this is the important fact about this clause — to exercise effective jurisdiction over such persons but it must also be clear to the authorities of the foreign country that we have and can exercise such jurisdiction. Clause 10 is designed to accomplish this." [ 27 ] The court had found that counsel for the applicant had minimized the importance of this aspect of the legislation, which was clearly identified by the then-Associate Minister of National Defence.

These remarks were made shortly after his initial comments on clause 10, at page 2008, where he stated: "When the arrangements come into effect whereby West Germany will regain almost complete sovereignty, the status of Canadian personnel will undergo a change. The German courts will then have jurisdiction in criminal matters, but only in cases where Canadian military tribunal have not by the law of Canada been given jurisdiction. A s regards France, Belgium and the United States, the NATO status of forces agreement now applies to our forces in these three countries.

Under that agreement Canada has the primary right to exercise jurisdiction of members and civilian employees of the Canadian Forces in those countries in relations to: (

a) offences solely against the property or security of Canada, (

b) offenses solely against the person or property of another member or employee of the Canadian Forces; and (

c) offences arising out of any act or omission done in the performance of official duty. Canada has no primary right to exercise jurisdiction over dependants, but may request these countries to waive their right to exercise jurisdiction, and they are bound by the agreement to give sympathetic consideration to such a request." [ 28 ] The court stated that the amendment to the National Defence Act that became section 61(1)(

b) were not made to "extend but limit the jurisdiction that might be exercised by the services over accompanying civilians ... as it [was] not intended that the services will in fact exercise jurisdiction over civilians unless it is absolutely essential or in the interests of the civilians themselves that they do so. " (Exhibit M3-4 at page 2009).

It was understood that within Canada, ordinary criminal courts, by virtue of the National Defence Act would continue to be supreme and have the power to supplant the jurisdiction of service courts. (Emphasis added) [ 29 ] More importantly, Mr Campney made it clear that this amendment was introduced as it was "important for the protection of dependents and other civilians accompanying the forces abroad that the extent to which they are subject to the Canadian Jurisdiction be clearly defined." (Exhibit M3-4, page 2010).

Clearly, the general intent of this amendment was to protect the interests of the persons who accompanied the Canadian Forces abroad, which then did not include the protection afforded by the Charter , to be tried according to our law. This would ensure that a person accompanying the Forces abroad would be treated in a manner that brought predictability and certainty as to the legal principles and rights that would be applied. This was a legitimate objective that is still valid. Given the complexity of situations where these situations may arise, the court concluded that the definition contained in

section 61 of the National Defence Act was not arbitrary or disproportionate. The court expressed its view that the umbrella provided by this definition was for the benefit of an accused to be treated with all the protection accorded to a Canadian citizen, including the Charter.

Balancing the state interests to exercise primary jurisdiction over civilians who accompany the Canadian Forces abroad and make it clear to the authorities of the foreign country that Canada has and can exercise such jurisdiction, and the rights of such an accused to be treated with the fullest extent of the rights afforded to other Canadian citizens, the court concluded that the provisions were not grossly disproportionate to the state interest the legislation sought to protect. [ 30 ] The court found that in striking this balance,

section 273 of the Act is paramount to the exercise of jurisdiction in the context of the legislation and its intended purpose that civilians not be tried by service tribunals unless it is absolutely essential or in the interests of the civilians themselves that they do so. The modernization of the National Defence Act through Bill C-25 and Bill C-60 did not affect in any away the purpose and the objective of now section 61(1)(

b) to the effect that it was not intended that the services will in fact exercise jurisdiction over civilians unless it is absolutely essential or in the interests of the civilians themselves that they do so. The fact that the prosecutorial function and a military judiciary were created in Bill C-25 did not trump the meaning of the existing provisions or that they can be ignored in the name of modernization. However, the fact that this provision was not used, according to counsel, in many years may provide some explanation to the ignorance of its historical background. [ 31 ] After a careful review of sections 60(1)(

f) and 61(1)(

b) of the Act in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act , and the intention of Parliament, the court concluded that these provisions were constitutional. It is important to understand that in balancing the factors, the court was ultimately satisfied with the constitutionality of section 61(1)(

b) of the Act mainly because of the emphasis expressed by the Associate Minister of National Defence as to the purpose and objective of the provision that was not drafted to "extend but limit the jurisdiction that might be exercised by the services over accompanying civilians ... as it [was] not intended that the services will in fact exercise jurisdiction over civilians unless it is absolutely essential or in the interests of the civilians themselves that they do so. " (Exhibit M3-4, at page 2009). Without this element, the court may have reached a different outcome. Now, counsel for the respondent now asks this court to reject an important aspect of the

historical objective and purpose of this provision because it would have no relevance today. The court does not agree with such anapproach to serve as a shield to prevent a review of prosecutorial discretion in a claim alleging an abuse of process. (Emphasis added) [32] The doctrine of abuse of process is available where the abuse causes prejudice to an accused's rights to a fair trial (even in theabsence of prosecutorial misconduct) or to the integrity of the judicial system (see R v Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566 atparagraphs 36 and 42).

The residual category of abuse of process addresses the panoply of diverse circumstances in which a prosecutionis so tainted that it attains a threshold of unfairness or vexatiousness that commands judicial intervention because the conduct socontravenes fundamental notions of justice that it undermines the integrity of the judicial process (see R v Schacher, (2003) 2003 ABCA313 , 179 C.C.C.(3d) 561 at paragraph 10).

The applicant has brought his claim of abuse of process within what is oftendescribed as the residual category on the basis that the prosecution has acted arbitrarily in preferring the charges against the accused asopposed to referring the matter to civilian authorities and that the effect of that decision is disproportionate on the applicant consideringthe purpose and objective of section 61(1)(

b) of the National Defence Act. [33] In a claim for abuse of process, under the common law or under the Charter, the applicant bears the onus of proof. It must beestablished on a balance of probabilities that to allow the Crown to proceed against him or her would violate the community's sense offair play or decency or that the proceedings would be oppressive. It is well settled in law that prosecutorial discretion of the AttorneyGeneral is beyond the legitimate reach of the court.

Although this matter has not been settled, the court approached this application withthe approach that the Director of Military Prosecutions could enjoy the same treatment under the provision created in Bill C-25 in 1998which created a distinct Director of Military Prosecutions at the time. However, this prosecutorial discretion is reviewable by the courtunder the doctrine of abuse of process.

In the context of the powers exercised by the Director of Military Prosecutions, the decisions toprefer or not to prefer charges, or withdraw charges or refer matters to civilian prosecutorial authorities are matters that would fall withinthe core elements of prosecutorial discretion in the traditional sense. However, does the fact that the prosecution has not answered oragreed to the requests made of counsel for the applicant to refer the matter to civilian authorities further to the rulings of this court as tothe constitutionality of sections 60(1)(

f) and 61(1)(

b) of the Act fall within the realm of prosecutorial discretion? Although in the contextof the repudiation of a plea agreement by the Crown, the Supreme Court of Canada in R v Nixon, Charron J. writing for the court, madethe following remarks, at paragraphs 29 to 31: [29] None of the participants in this appeal disputes that Crown counsel’s decision to resolve the proceedings by accepting a plea toa lesser offence falls within the scope of prosecutorial discretion as defined in Krieger.

To the extent that the application judge’sanalysis suggests that anything occurring after the charges are laid falls outside the scope of prosecutorial discretion, it cannot besustained. If the line were to be drawn at the point seemingly chosen by the application judge, namely “when [the] discretion isexercised in favour of proceeding” (para. 12), Crown counsel’s decision to enter into a plea agreement would itself be subject to reviewby the court as a matter of conduct or tactic without regard to the principles of judicial restraint set out in Krieger.

As noted by PapernyJ.A., to artificially draw the line at the courtroom door “effectively neuters some of the primary purposes of prosecutorial discretion, toresolve cases by accepting pleas to lesser charges and to discontinue prosecutions” (para. 32). [30] In my view, the question of whether the ADM’s decision to repudiate the plea agreement is

an act of prosecutorial discretion,although disputed in this appeal, is just as easily resolved. As aptly put by Paperny J.A., in determining whether any impugned decisionfalls within the core of prosecutorial discretion, it is useful to ask: “... is it a decision as to whether a prosecution should be brought,continued or ceased, and if so, what it should be for?” (para. 32). Applying this test, she held that the ADM’s decision to repudiate theplea agreement “fell squarely within the core elements of prosecutorial discretion” (para. 33). I agree.

In my respectful view, it isdifficult to see how the ADM’s decision could otherwise be characterized. The ADM effectively decided that the prosecution againstMs. Nixon should be continued and that it should be for the Criminal Code offences of dangerous driving, not for the traffic infraction ofcareless driving. Clearly, the ADM’s decision to repudiate the plea agreement also constitutes

an act of prosecutorial discretion. Prosecutorial discretion was not spent with the decision to initiate the proceedings, nor did it terminate with the plea agreement. So longas the proceedings are ongoing, the Crown may be required to make further decisions about whether the prosecution should becontinued and, if so, in respect of what charges. [31] Thus, it follows that the Crown’s ultimate decision to resile from the plea agreement and to continue the prosecution is subjectto the principles set out in Krieger: it is only subject to judicial review for abuse of process.

In my view, the decision of the military prosecution to continue with the court martial and not to withdraw the charges in order thatjurisdiction of the civilian courts could be exercised under

section 273 of the National Defence Act is also

an act of prosecutorialdiscretion that is only subject to judicial review for abuse of process. [34] The court agrees with the prosecution that in the context of the doctrine of abuse of process, this case does not concern theprosecutorial conduct affecting the fairness of the trial, i.e. this Standing Court Martial. The applicant has not established on a balance ofprobabilities that being subject to a different judicial process such as this Standing Court Martial, as opposed to being tried by an ordinarycourt of criminal jurisdiction pursuant to

section 273 of the National Defence Act, would affect the fairness of the trial. I accept that iftried by an ordinary court of criminal jurisdiction, the applicant could elect to be tried by a judge and jury, have the benefit of being tried

for

summary conviction offences and that the sentencing regime would not be limited to imprisonment and a fine, such as the availability of conditional sentences, probation as well as conditional or absolute discharge.

In absence of a complete record, including the circumstances surrounding the commission of the alleged offences and other relevant evidence, the court could not conclude that the trial of the applicant under the Code of Service Discipline would be grossly disproportionate in its effects on the applicant in the specific circumstances. [ 35 ] In Ellis v R , 2010 CMAC 3 , the appellant, a member of Regular Force at the time of the offences, challenged the legality and the fitness of his nine months' imprisonment sentence for convictions on two charges of trafficking cocaine and two charges of conduct to the prejudice of good order and discipline for using cocaine.

Létourneau J.A., for a unanimous court, acknowledged that persons subject to the Code and tried by a court martial are exposed to significant differences of treatment when compared to ordinary citizens, at paragraphs 21 to 26 : [21]

Section 130 of the Act includes in that Code ordinary criminal law or civilian offences which, by the definition of "service offence" in

section 2 and the combined effect of

section 130, may become military offences triable by military courts. "Service offence", according to the definition, "means an offence under this Act, the Criminal Code or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline". "Service offence" is translated in French by "infraction d'ordre militaire". [22] The scope of the Code is also broad with respect to the jurisdictions rationae loci and rationae personae.

The military courts' jurisdiction extends to offences committed outside Canada by members of the regular, the special and the reserve force as well as civilians who accompany a unit or another element of the Canadian Forces that is on service or acting service in any place: see Canadian Military Law Annotated , supra , at pages 293 and 294, sections 15, 60, 61 and 67 of the Act for the details of their subjection to the Code. [23]

Section 139 enumerates the kind and range of punishments that a military court can impose for a service offence. Under subsection 139(2), the military court may impose one or more of the punishments lower in the scale of punishments than the punishment specified for the offence. The court possesses this power when the provision creating the offence stipulates that the person found guilty is liable, for example, to imprisonment, dismissal with disgrace or to lesser punishment . The words "to lesser punishment" appear in every military offence, including Criminal Code offences: see for examples

section 77 (offences related to operations),

section 78 (spying for the enemy),

section 83 (insubordination),

section 84 (striking an officer) and subparagraphs 130(2)( b )(

i) and (ii) of the Act. [24] While the Code of Service Discipline over the years has extended its scope of application to all civilian offences, except murder, manslaughter and the abduction of children when these offences are committed in Canada (see

section 70 of the Act), the range and scale of punishments provided by

section 139 of the Act have not followed and benefited from the evolution of the sentencing options now available to civilian courts. For example, as this court stated in Trépanier v. Her Majesty the Queen , 2008 CMAC 3 , at paragraph 36 : [36] An accused convicted by a court martial for Criminal Code offences is also deprived of a variety of sentences which would be available to him if he or she were tried before a civilian court. Absolute discharge (

section 730 of the Criminal Code ), conditional discharge ( ibidem ), condition sentences whereby the sentence of imprisonment is served in the community (

section 742.1 of the Criminal Code ), conditional sentence order (

section 742.3 of the Criminal Code ), intermittent sentence (

section 732 of the Criminal Code ) and suspended sentence with probation (

section 731 of the Criminal Code ) are not part of the range of sentences that a court martial can impose pursuant to

section 139 of the NDA: see Dixon v. Her Majesty the Queen, supra , at paragraphs 21 and 22. [25] As a result, for similar offences committed in similar circumstances, civilian and military accused may received a different treatment at the sentencing level. Indeed, a civilian who happens to fall under the scope of the Code of Service Discipline may receive a treatment different from the one that he would have received if he had been prosecuted before a civilian court for the same offence committed in similar circumstances. In fact, the range and scale of punishments under

section 139 of the Act has practically remained the same since its enactment in 1950. [26] This is the context in which the constitutional challenge to

section 139 of the Act is brought. This brings me to the analysis of the appellant's grounds of appeal and to two principles that should govern our approach to the constitutional challenge to the judge's decision on sentencing. He continued and made the following remarks, at paragraphs 29 to 30:

[29] I am of the view that the particular facts in the present instance do not support the constitutional challenge. The appellant doesnot contest that imprisonment is an appropriate sentence for the offences charged although he would have liked to receive a conditionalsentence which would allow him to serve his imprisonment in the community. However, the sentence proposed by counsel for theappellant at trial (who was not counsel appearing on appeal) was, in the scale of punishment, higher than the one actually imposed by thejudge.

Counsel for the appellant recommended a dismissal with disgrace (a punishment higher than imprisonment for less thantwo years), combined with a six (6) months' imprisonment whose execution could be suspended pursuant to

section 215 of the Act: seeAppeal Book, vol. 1, at page 170. [30] The appellant's constitutional arguments are not based on the facts of his case. Rather, they question the policy choices madeby Parliament. They rest on the conclusion that the civilian system offers better sentencing options than

section 139 of the Act. There isno doubt that this is true and that the military justice system would greatly benefit from a wider variety of options: see The FirstIndependent Review of the provisions and operation of Bill C-25,

An Act to amend the National Defence Act and to make consequentialamendments to other Acts, September 3, 2003 by the Right Honourable Antonio Lamer where he concluded that the sentencingprovisions under the Act require extensive reform. However, this does not mean that there are no acceptable sentencing alternativesunder

section 139 of the Act. Nor does it necessarily mean that the scale of punishments therein is so grossly disproportionate for anoffender that Canadians would find the punishment abhorrent or intolerable and, therefore, that

section 139 is unconstitutional: see R. v.Morrisey, 2000 SCC 39 , [2000] 2 S.C.R. 90, at paragraph 26. [36] The Court Martial Appeal Court refused to embark on an analysis of the constitutionality of

section 139 of the NationalDefence Act in the abstract and in absence of a sufficient record. However, this court considers that these prudent remarks apply to theexercise of jurisdiction and must be considered on a case-by-case basis when charges are preferred to deal with a person subject to theCode of Service Discipline, especially in the context where military justice reform is ongoing. Such considerations ought to be carefullyweighed and they would include the legitimate purpose and objectives as to why a person is subject to the Code by virtue of section60(1) (a), 60(1)(

c) or 60(1)(

f) of the Act and, if so, how Parliament intended these provisions to be applied.

The court does not accept theposition advanced by the prosecution during its submissions that a "one size fits all" approach should apply in the same fashiondepending on whether a person is subject to the Code because he is an officer or a non-commissioned member of the Regular Force orbecause he or she is a person who accompanied the Canadian Forces abroad for a specific task over a short period in an almost civiliansetting or because he or she is a person who accompanied the Canadian Forces abroad and is embedded with an element of the CanadianForces who is involved in a combat situation.

It does not mean that these three persons should not be tried by court martial, but eachsituation should be considered on its own merits. [37] In my view, this case could fall within the residual category if there is evidence that the prosecutorial conduct contravenedfundamental notions of justice and thus undermines the integrity of the judicial process.

As it was strongly argued by the prosecution, Iagree that it is important that courts do not proceed with a review of prosecutorial discretion in the absence of a threshold determinationthat the inquiry is warranted. [38] However, the court considers that the applicant has met that threshold. The evidence to the effect that requests have beenmade by the defence, before to the ruling of that court on the constitutionality of sections 60(1)(

f) and 61(1)(

b) of the Act, requesting thatthis matter be transferred to civilians authorities and the refusal to do so as well as the refusal of the prosecution to disclose anyinformation with regard to the rationale behind its decision (Exhibits M3-6 and M3-7) is a proper basis to look further into this matter inthe context of the previous ruling of this court re: 61(1)(

b) of the Act, where it strongly expressed that the purpose and objective of theprovision did not wish to "extend but limit the jurisdiction that might be exercised by the services over accompanying civilians ...as it[was] not intended that the services will in fact exercise jurisdiction over civilians unless it is absolutely essential or in the interests of thecivilians themselves that they do so" (Exhibit M3-4, at page 2009). The court does not believe that the original decision of the Directorof Military Prosecutions to prefer the charges would amount to an abuse of process.

The prosecution may have had a legitimateexplanation not to provide information to the applicant as to its reasons not to refer this matter to the civilian authorities.

However, inlight of the specific ruling of the court and the requests made counsel for the applicant, the language used in the prosecutor's response tothe request to transfer the file to civilian authorities (Exhibit M3-6) sends the clear message that the prosecution was not prepared toreview its decision and that the ruling of the court did not modify that approach. (Emphasis added) [39] Only the prosecution can provide information as to the reasons behind its original decision to prefer charges and its currentdecision to continue.

Without such explanation, the court is not in a position to asses whether this decision to continue after the rulingwas made arbitrarily and without taking into consideration the reasons provided by the court in its ruling, or without regard to anyprejudice to the applicant in the specific circumstances of this case. The prosecution has chosen to remain silent, invoking itsprosecutorial discretion.

As stated by Charron J. in Nixon "... [h]owever, if the Crown provides little or no explanation to the court, thisfactor should weigh heavily in favour of the applicant in successfully making out an abuse of process claim" (see paragraph 63). [40] Here, the prosecution took the approach that its prosecutorial discretion could not be questioned by the court and hevehemently denied that the applicant had met the requisite evidentiary threshold. Based on the evidence filed during the application, theprosecutor had to provide some explanation; he refused to do so and, as in Nixon, it has weighed heavily against him.

I cannot ignore thefact than when invited by the court to explain what he meant in his response to the email requesting that the matter be referred to civilianauthorities (Exhibit M3-6) and if the court could make inferences as to that email, he replied that the court should not make any

inference. Questioned by the court as to what he meant in that email when he wrote, "At this time I do not believe it is in anyone's interest to withdraw charges and refer them to a civilian court", in particular, if "anyone's interest" included the accused, he said, Yes.

In these circumstances, the court can only conclude that the applicant has met its burden of proof and also conclude that he has established an abuse of process. [ 41 ] The court examined the letter (Exhibit M3-8) of the Commanding Officer of the SLOC Det DEU, Lieutenant-Colonel Boyle, asking the Commander Canadian Operational Support Command (Comd CANOSCOM ) that the matter be referred to the Director of Military Prosecutions for trial by court martial, as he believed "it [was] in the public interest to proceed with the charges laid within the military justice system due to the serious nature of the alleged offences, the negative impact the alleged threat had on the victim, and the fact that the alleged offences occurred in a deployed setting while the Accused was embedded with the CF and involved CF members with whom the Accused was co-located." Accepting the legitimacy of these reasons, they are not sufficient in my view to support the conclusion sought in the circumstances of this case in light of the intent of the legislation that the Canadian Forces will not in fact exercise jurisdiction over civilians unless it is absolutely essential or in the interests of the civilians themselves that they do so.

The weighing of these factors rests exclusively with the Director of Military Prosecutions, particularly whether it is in the public interest that a prosecution be pursued. [ 42 ] The prosecution may have had legitimate reasons to proceed under the Code of Service Discipline. The prosecution may have had legitimate reasons to continue to proceed under the Code of Service Discipline. For example, further to a refusal of civilian authorities to exercise jurisdiction despite the public interest to proceed with the charges and a reasonable prospect of conviction.

However, the court cannot speculate as to what valid reasons could have been advanced by the prosecution. It had every opportunity to provide at least some explanation and chose not to do it. The court can only conclude that the prosecution's conduct in these circumstances amounts to an abuse of process to the integrity and reputation of the military justice system. [ 43 ] However, the court is not satisfied that a stay of proceedings is justified in the circumstances. Such extreme remedy can only be used in the clearest of cases under section 24(1) of the Charter .

In balancing the state interests to have serious offences be tried on the merits and the rights of the applicant to have a fair trial, the court considers that an appropriate remedy in the circumstances would be to terminate the proceedings of this court martial pursuant to section 24(1) of the Charter . Conclusion and Disposition FOR ALL THESE REASONS: [ 44 ] The application is granted and the court hereby terminates the proceedings. COLONEL M. DUTIL, C.M.J. Counsel: Lieutenant-Commander P.D. Desbiens, Directorate of Defence Counsel Services Lieutenant-Commander M.

Létourneau, Directorate of Defence Counsel Services Major A.M.W. Reed, Directorate of Defence Counsel Services Counsel for the applicant

Major R.D. Kerr, Canadian Military Prosecution Services Counsel for the respondent