ARMED FORCES |
Rushnell v. Canada (Attorney General)
T-349-01
2001 FCT 199, Rouleau J.
19/3/01
12 pp.
Application for interim prohibition order against Commander Price sitting as judge presiding over Standing Court Martial and for interim declaration Standing Court Martial cannot proceed pending application for judicial review seeking writ of prohibition against all three recently nominated judges (including Commander Price) as all had worked as Director of Public Prosecutions or as Deputy Director of Military Prosecutions--Applicants alleged Commander Price should not preside over standing court martial as, as Deputy Director of Military Prosecutions at time charges preferred, was supervisor of counsel now prosecuting case against applicants--Motion dismissed--Criteria for granting interim relief those governing granting interlocutory injunctions established in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110--F.C.T.D. clearly granted jurisdiction by Federal Court Act, s. 18 to hear application for writ of prohibition as herein--Application of three-pronged test enunciated by S.C.C. in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.; RJR--MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311--No serious issue to be tried --No allegation Commander Price even had knowledge of their cases--Furthermore, Commander Price stated at hearing had, at the time, no knowledge of applicants' files and had not worked on them--Past professional association, without more, insufficient to support allegation of apprehension of bias: Hodson v. M.N.R. (1987), 46 D.L.R. (4th) 342 (F.C.A.); Fogal v. Canada, [2000] F.C.J. No. 916 (F.C.A.) --Considering circumstances and paucity of evidence, mere assertion of applicants not sufficient to demonstrate serious question in present case--Applicants have not established would suffer irreparable harm if injunction not granted--Effect of not granting stay would be to force applicants to go to trial, postpone determination on question of reasonable apprehension of bias--Balance of convenience clearly favouring refusing stay--Applicants have impugned integrity of three of four military judges now sitting on military bench--Granting stay to applicants will make it difficult to refuse same remedy to others--Potential for cascade of stays and near-paralysis of military justice impractical and not in public interest--Federal Court Act, R.S.C., 1985, c. F-7, s. 18 (as am. by S.C. 1990, c. 8, s. 4).