Date: 20010319
Docket: T-349-01
Neutral Citation: 2001 FCT 199
BETWEEN:
V70 255 794 PRIVATE R.C. RUSHNELL,
H38 645 326 PRIVATE M.E. VANSON, and
C78 787 979 PRIVATE G.W. WINKLER
Applicants
AND:
ATTORNEY GENERAL OF CANADA,
COMMANDER JAMES PRICE IN HIS CAPACITY
AS A MILITARY JUDGE, COLONEL KIM CARTER
IN HER CAPACITY AS A MILITARY JUDGE,
LIEUTENANT-COLONEL MARIO DUTIL IN HIS
CAPACITY AS A MILITARY JUDGE, and
STANLEY J. BLYTHE IN HIS CAPACITY
AS COURT MARTIAL ADMINISTRATOR
Respondents
REASONS FOR ORDER
ROULEAU, J.
[1] On January 9, 2001, various offences under the Code of Service Discipline were preferred against the applicants. These offences relate to threats and an assault on a superior officer.
[2] On February 13, 2001, the Chief Military Judge assigned Commander Price, on behalf of the respondents, to preside at the Standing Courts Martial convened to try these charges. Commander Price had, at the time the charges were being preferred, not yet been elevated to the bench. He held in fact the position of Deputy Director of Military Prosecutions. As such, he was in charge of supervising Major Fullerton who dealt with the applicants' files and is now prosecuting them.
[3] On February 27, 2001, the applicants commenced an application for judicial review. In essence, they allege that none of the three recently nominated judges (including Commander Price) should preside over their Standing Court Martial because they all have worked as Director of Military Prosecutions or as a Deputy. The remedy sought is the issuance of a writ of prohibition.
[4] Private Rushnell's court martial was set to proceed on March 6, 2001. On that day and before the trial started, the applicants moved, before the Federal Court, for interim relief in the nature of an interlocutory injunction. The motion was dismissed as premature. Later in the day, the hearing started and counsel for the accused immediately objected to Commander Price presiding over the court martial, on the basis of a reasonable apprehension of bias. Commander Price issued his decision on the objection the next day. He explained that he had no prior involvement or knowledge of the charges and that consequently there was no reasonable apprehension of bias. At the request of the parties, Commander Price adjourned the court martial of Private Rushnell to March 19, 2001, to allow the defence a further opportunity to seek interim relief in the Federal Court.
[5] The applicants now move again to obtain an order for interim prohibition directed against Commander Price and for an interim declaration that the Standing Courts Martial cannot proceed pending disposition of the application for judicial review commenced on February 27, 2001 and seeking a writ of prohibition.
Jurisdiction of the Federal Court
[6] Section 18 of the Federal Court Act is the foundation of this Court's supervisory jurisdiction. The relevant portion reads:
| 18. (1) Subject to section 28, the Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
18.(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.
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18. (1) Sous réserve de l'article 28, la Section de première instance a compétence exclusive, en première instance, pour:
a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral;
b) connaître de toute demande de réparation de la nature visée par l'alinéa a), et notamment de toute procédure engagée contre le procureur général du Canada afin d'obtenir réparation de la part d'un office fédéral.
18.(3) Les recours prévus aux paragraphes (1) ou (2) sont exercés par présentation d'une demande de contrôle judiciaire.
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[7] The specific grounds for the present motion are found in section 18.2 of the Act:
| 18.2 On an application for judicial review, the Trial Division may make such interim orders as it considers appropriate pending the final disposition of the application.
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18.2 La Section de première instance peut, lorsqu'elle est saisie d'une demande de contrôle judiciaire, prendre les mesures provisoires qu'elle estime indiquées avant de rendre sa décision définitive.
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[8] The criteria that must be used in deciding whether to grant interim relief are those which govern the granting of interlocutory injunctions (Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110).
[9] Counsel for the respondents objected to the Court's jurisdiction or at least suggested that the Court should greatly hesitate to exercise its discretion to grant interim relief by reason of section 18.5 of the Act. That section reads:
| 18.5 Notwithstanding section 18 and 18.1, where provision is expressly made by an Act of Parliament for an appeal as such to the Court, to the Supreme Court of Canada, to the Court Martial Appeal Court, to the Tax Court of Canada, to the Governor in Council or to the Treasury Board from a decision or order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act.
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18.5 Par dérogation aux articles 18 et 18.1, lorsqu'une loi fédérale prévoit expressément qu'il peut être interjeté appel, devant la Cour fédérale, la Cour suprême du Canada, la Cour d'appel de la cour martiale, la Cour canadienne de l'impôt, le gouverneur en conseil ou le Conseil du Trésor, d'une décision ou d'une ordonnance d'un office fédéral, rendue à tout stade des procédures, cette décision ou cette ordonnance ne peut, dans la mesure où elle est susceptible d'un tel appel, faire l'objet de contrôle, de restriction, de prohibition, d'évocation, d'annulation ni d'aucune autre intervention, sauf en conformité avec cette loi.
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[10] The respondents also cited MacKay v. Rippon, [1978] 1 F.C. 233 to support their argument. In that case, Cattanach, J. wrote, at pp. 245-46:
"Prohibition, like all prerogative writs, is not granted as of right but upon judicial discretion exercised with great caution and forbearance for the furtherance of justice when other remedies are not available.
When lack of jurisdiction is apparent of the face of the proceedings prohibition will issue but where want of jurisdiction is not so apparent then the granting of prohibition is discretionary.
In my view such a lack of jurisdiction is not apparent in view of the plethora of decision following the Drybones case.
It therefore seems to me that the question of want of jurisdiction should have been raised first as a plea in bar of trial before the Standing Court Martial as the applicants were entitled to do and did not choose to do.
In the event of this having been done and the decision of the Standing Court Martial had been adverse to the applicants the question of lack of jurisdiction would have been properly raised on appeal to the Court Martial Appeal Court and there is an appeal from the Court Martial Appeal Court to the Supreme Court of Canada.
Furthermore the right to apply to the Federal Court of Appeal for the review of a decision of a federal tribunal under section 28 of the Federal Court Act with respect to the decision of a Court Martial is specifically precluded by virtue of subsection (6). The reason for the exclusion of Courts Martial from the supervisory jurisdiction of the Court of Appeal of a service offence and particularly of a Court Martial is obvious. There is an appeal to the Court Martial Appeal Court. Accordingly it seems incongruous to me that if there is no jurisdiction in the Court of Appeal to review under section 28 that there should be jurisdiction to do so in the Trial Division under section 18 of the Federal Court Act by way of prerogative writ."
[11] I do not accept the respondents' arguments in this respect and do not believe that the above-cited case can be relied upon anymore. Both the National Defence Act and the Federal Court Act have been amended since the issuance of the MacKay decision. Furthermore, as is clear from the following passage, Cattanach, J.'s opinion was merely an obiter:
"However, as I have said, in view of the conclusion I have reached it is not incumbent upon me to consider the exercise of my discretion to grant prohibition and I do not do so in these instances. I do not do so because I do not wish my remarks to trammel any of my brother Judges who might be obliged to consider the exact question."
[12] Upon consideration of the question, I find it is clear that the Federal Court, Trial Division, has the jurisdiction to hear an application for a writ of prohibition from an application facing charges in a Standing Court Martial procedure. Section 18 of the Federal Court Act clearly grants the Court this power. It is true that section 18.5 limits the scope of review to those matters for which an appeal before the Court Martial of Appeal already exists. However, it is my understanding that the National Defence Act does, in no way, allows for appeals before the Court Martial of Appeal of an interim decision. In fact, the grounds for appeals are quite limited, as can be ascertained by section 230 of that Act:
| 230. Every person subject to the Code of Service Discipline has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:
(a) with leave of the Court or a judge thereof, the severity of the sentence, unless the sentence is one fixed by law;
(b) the legality of any finding of guilty;
(c) the legality of the whole or any part of the sentence;
(d) the legality of a finding of unfit to stand trial or not responsible on account of mental disorder;
(e) the legality of a disposition made under section 201, 202 or 202.16; or
(f) the legality of a decision made under subsection 196.14(1) or 196.15(1).
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230. Toute personne assujettie au code de discipline militairel peut, sous réserve du paragraphe 232(3), exercer un droit d'appel devant la Cour d'appel de la cour martiale en ce qui concerne les décisions suivantes d'une cour martiale:
a) avec l'autorisation de la Cour d'appel ou de l'un de ses juges, la sévérité de la sentence, à moins que la sentence n'en soit une que détermine la loi;
b) la légalité de tout verdict de culpabilité;
c) la légalité de la sentence, dans son ensemble ou tel aspect particulier;
d) la légalité d'un verdict d'inaptitude à subir son procès ou de non-responsabilité pour cause de troubles mentaux;
e) la légalité d'une décision rendue aux termes de l'article 201, 202 ou 202.16;
f) la légalité de la décision prévue aux paragraphes 196.14(1) ou 196.15(1).
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[13] While it is true that on appeal, an accused will be free to raise the issue of reasonable apprehension of bias, section 230 in no way precludes this Court from exercising its supervisory role. In fact, the opposite conclusion would be constitutionally doubtful, as no other Court would be qualified to exercise a supervisory role on the Court Martial institution.
[14] It is also clear from section 231 of the National Defence Act that the supervisory role of the Federal Court was preserved:
| 231. The right of any person to appeal from the finding or sentence of a court martial shall be deemed to be in addition to and not in derogation of any rights that the person has under the law of Canada.
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231. Le droit d'interjeter appel du verdict ou de la sentence de la cour martiale est réputé s'ajouter, et non déroger, aux droits personnels reconnus par le droit canadien.
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[15] I therefore find that the Court is properly seized of a request for interim relief pending the disposition of the application for a writ of prohibition. The three-pronged test that must now be applied is that which was enunciated by the Supreme Court of Canada in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 and RJR Macdonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311.
Merits of the motion
[16] At the first stage of the RJR Macdonald test, the applicant must demonstrate a serious question to be tried. This test should generally be determined by the Court on the basis of common sense and an extremely limited review of the merits. The threshold to satisfy this test is a low one. An application meets the threshold if the application is neither vexatious nor frivolous (RJR Macdonald, supra, at 335 and 337-338).
[17] In the present case, the applicants rely on only one fact: Commander Price was, at the time the charges were preferred, Deputy Director of Military Prosecutions and as such, was the supervisor of the counsel who is now prosecuting the case against the applicants. The applicants do not allege that Commander Price even had knowledge of their cases. Furthermore, Commander Price, at the hearing, disposed of the objection by stating that he had, at the time, no knowledge of the applicants' files and had not worked on them.
[18] Should the relief sought by the present motion be granted and the judicial review proceeding be heard on its merits, the applicants would have to satisfy the Court that a reasonable and right-minded person, appraised of all of the relevant information, would reasonably conclude to the existence of a reasonable apprehension of bias. It has been previously determined that a past professional association, without more, is insufficient to support an allegation of apprehended bias (Hodson v. M.N.R. (1988), 46 D.L.R. (4th) 343 (F.C.A.); Fogal v. Canada, [2000] F.C.J. No. 916 (F.C.A.)).
[19] I believe that considering the circumstances and the paucity of the evidence, the mere assertion of the applicants is not sufficient to demonstrate that there is a serious question in the present case. In any event, the other parts of the test are not adequately met.
[20] To fulfill the second part of the test, the applicants must satisfy the Court that they will suffer irreparable harm if the injunction is not granted. Irreparable harm refers to harm that would not be adequately compensated in damages or cured by the decision on the merits. The evidence of harm must be clear and not merely speculative. It must support a finding that the applicants would suffer irreparable harm if the interim stay were not granted (Centre Ice Ltd. v. National Hockey League (1994), 53 C.P.R. (3d) 34 (F.C.A.)).
[21] If the stay is denied, the Standing Courts Martial will proceed with the trials. If the applicants are convicted, they can appeal their conviction to the Court Martial Appeal Court and raise, as one of their arguments, their objection to the constitution of the Standing Court Martial. If sentenced to a term of imprisonment, they can be released pending disposition of the appeal. If sentenced to pay a fine, terms for payment can be obtained. If not convicted, the issue becomes academic. Not granting the stay has the effect, in the end, of forcing the applicants to go to trial and of postponing the determination on the question of reasonable apprehension of bias. The harm caused by this is not irreparable.
[22] The third and final stage requires an assessment of the balance of convenience. I believe the balance of convenience clearly favours refusing the stay. The applicants have impugned the integrity of three of the four military judges now sitting on the military bench. Granting a stay to the applicants will make it difficult to refuse the same remedy to others. The potential for a cascade of stays and the near-paralysis of the military justice system is impractical and not in the public interest. Section 162 of the National Defence Act reads:
| 162. Charges under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit.
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162. Une accusation aux termes du code de discipline militaire est traitée avec toute la célérité que les circonstances permettent.
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[23] Granting a stay creates delay where Parliament directed the expeditious process required by the maintenance of discipline in the Forces.
Conclusion
[24] In my opinion, the applicants have failed to demonstrate that the three-pronged test for the granting of a stay is met in the circumstances. Accordingly, the motion is dismissed.
JUDGE
OTTAWA, Ontario
March 19, 2001
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