T-6020-80
Corporal J. M. Luc Grégoire (Petitioner)
v.
Lieutenant-General J. J. Paradis, Lieutenant -
General R. Gutknecht, Lieutenant-Colonel J. P.
D. Boiteau, Lieutenant-Colonel N. Rouleau, Lieu-
tenant-Colonel J. P. Plouffe, Major J. J. B. Pin-
sonneault, Major G. Babkine, Captain J. P. L'Es-
pérance, Captain C. Biais (Respondents)
and
Attorney General of Canada and Attorney General
of the Province of Quebec (Mis -en-cause)
Trial Division, Walsh J.—Montreal, March 3;
Ottawa, March 11, 1981.
Prerogative writs — Prohibition — Petition to prevent
respondents, a Court Martial, from continuing the trial of
petitioner, a member of the Canadian Armed Forces, on crimi
nal charges — Charges laid under s. 120 of the National
Defence Act for breaches under the Criminal Code — Charges
against the petitioner if brought under the Criminal Code
would have been prescribed — Submission by petitioner that s.
59 of the National Defence Act providing for a longer pre
scription than the Criminal Code is contrary to s. 1(b) of the
Canadian Bill of Rights — Whether this Court has authority
to issue writ of prohibition — Whether s. 120 of the National
Defence Act is ultra vires — Whether prosecution by way of
military tribunal contrary to the Canadian Bill of Rights with
respect to prescription — National Defence Act, R.S.C. 1970,
c. N-4, ss. 59, 120, 198 — Criminal Code, R.S.C. 1970, c.
C-34, ss. 245, 721(2) — Interpretation Act, R.S.C. 1970, c.
I-23, s. 27(2) — Canadian Bill of Rights, S.C. 1960, c. 44
[R.S.C. 1970, Appendix III], s. 1(b) — The British North
America Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970,
Appendix II, No. 5], ss. 91(7),(27), 92(14).
This is a petition by which means the petitioner, a member of
the Canadian Armed Forces, seeks to prohibit the respondents,
a Court Martial, from continuing the trial of petitioner with
respect to charges laid under section 120 of the National
Defence Act for breaches under the Criminal Code. Petitioner
submitted, without success, before the Court Martial, that if
the charges had been brought under the Criminal Code, they
would have been time-barred (as the Code provides for a
six-month prescription pursuant to section 721(2)) and that
accordingly the prosecution of the charges under section 59 of
the National Defence Act which provides a three-year prescrip
tion was contrary to section 1(b) of the Canadian Bill of
Rights. The first issue is whether this Court has the authority
to grant a writ of prohibition, the right of the petitioner to
appeal from a finding of a Court Martial under section 198 of
the National Defence Act notwithstanding. The second issue is
whether section 120 of the National Defence Act is ultra vires
in incorporating globally into the statute all Criminal Code
offences. The third issue is whether prosecution of certain
charges by way of military Court Martial when those charges
would already have been prescribed under the Criminal Code is
contrary to the Canadian Bill of Rights.
Held, the application is dismissed. Although there appears to
be a difference in judicial thinking as to whether the prosecu
tion of offences against the Criminal Code brought into the
National Defence Act by virtue of section 120 can properly be
prosecuted by Court Martial procedure, or whether this would
not be an infringement of the Canadian Bill of Rights, it
cannot be held, in the present state of jurisprudence, that
section 120 of the National Defence Act is ultra vires with
respect to the prosecution of offences in Canada nor that they
cannot be properly prosecuted under the provisions of the
National Defence Act. It is not necessary to decide whether the
Court has authority to issue a writ of prohibition since on the
merits of the case, it should not be issued.
R. v. Hauser [1979] 1 S.C.R. 984, discussed. MacKay v.
The Queen [1980] 2 S.C.R. 370, discussed. R. v. Pont-
briand (1978) 1 C.R. (3d) 97, considered. Smythe v. The
Queen [1971] S.C.R. 680, referred to.
APPLICATION.
COUNSEL:
J. D. Nolan for petitioner.
J. Ouellet, Q.C. for respondents.
SOLICITORS:
LeCorre, Paquette & Associés, Laval, for
petitioner.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
WALSH J.: In seeking a writ of prohibition
herein petitioner sets out that the provisions of the
National Defence Act, R.S.C. 1970, c. N-4 giving
anyone other than the Attorney General of a
province the right to institute proceedings in the
province for infractions of the Criminal Code,
R.S.C. 1970, c. C-34 are ultra vires, that counts 1
to 5 in the complaint laid against petitioner con
cern infractions of the Criminal Code taking place
in the Province of Quebec so that no one but the
Attorney General of that Province or a person duly
authorized by him has the right to institute pro
ceedings for these breaches, that the prosecution of
the said charges is taking place by a person who is
not the Attorney General of the Province of
Quebec nor a person duly authorized by him but
rather a federal prosecutor without power of attor
ney from the Attorney General of Quebec, that the
breaches contained in counts 2 to 5 inclusively are
prescribed by virtue of the law that created them
which is the Criminal Code of Canada, and that
section 59(1) of the National Defence Act which
provides for the trial of a person by a military
tribunal unless the proceedings are initiated after
three years from the date of the breach is contrary
to section 1(b) of the Canadian Bill of Rights,
S.C. 1960, c. 44 [R.S.C. 1970, Appendix III] in
that it provides a prescriptive period longer than
that provided in the law which created the breach,
that is to say the Criminal Code, and that there
fore said section 59(1) is illegal or inoperative with
respect to the counts 2 to 5 in the complaint.
The affidavit supporting the petition states that
petitioner is a member of the Canadian Army and
the military police and was stationed at Valcartier
at the dates in question. On March 21, 1980,
charges were laid by Lieutenant-Colonel J. P. D.
Boiteau, a Canadian officer at the time, and on
May 6, 1980, Lieutenant-General R. Gutknecht,
interim Commander of the mobile forces signed an
order for convocation of a Disciplinary Court Mar
tial held at Valcartier on May 29, 1980. The
members of the Court were to be Major J. F.
Bertrand, Captain J. G. Dubé and Captain S. J.
Solo. Lieutenant-Colonel J. P. Plouffe of the Judge
Advocate General's Office was named as Judge
Advocate. Major P. Boutet was to be the
prosecutor.
At the opening of the hearing and before plead
ing petitioner's attorney presented a petition to the
Court Martial to decline jurisdiction with respect
to the five first counts in the complaint, attacking
the constitutional authority of Major P. Boutet to
act as prosecutor and claiming that the Court
Martial did not have jurisdiction to render judg
ment on those charges. A second petition was also
produced with respect to the second, third, fourth
and fifth counts on the grounds that if those
charges had been brought under the Criminal
Code they would have been prescribed and that
accordingly proceedings under section 59 of the
National Defence Act which provides a three-year
prescription were contrary to section 1(b) of the
Canadian Bill of Rights. These objections were
rejected but the Court Martial then agreed to
adjourn to May 30, 1980, in order to permit
petitioner to present a writ of prohibition to the
Federal Court. The Court Martial proceeded on
that date with petitioner pleading not guilty to all
counts and after a hearing lasting all day was
adjourned to June 25, 1980, the next date conven
ient to all parties. On June 11, 1980, petitioner
presented a petition for the issue of a writ of
prohibition to this Court returnable on June 16,
1980, at which date it was continued to July 14,
1980, written notes being requested. On July 14,
1980, it was continued to September 23, 1980, for
argument and on that date Decary J. dismissed the
petition for the prohibition on the ground that one
of the members of the Court Martial, Captain
Solo, had died on September 5, 1980, so by virtue
of section 166(1) of the National Defence Act the
Court Martial must be deemed to have been
dissolved.
On December 2, 1980, Lieutenant-General J. J.
Paradis, Commander of the mobile forces signed
another order of convocation for the Court Martial
to be held at Valcartier on December 9, 1980, with
the president to be Major G. Babkine and the
other members Captain J. P. L'Espérance and
Captain H. A. Forget. The prosecuting officer was
to be Major J. J. B. Pinsonneault, and Lieutenant-
Colonel J. P. Plouffe of the Judge Advocate Gen
eral's Office was named as Judge Advocate. On
December 9, 1980, the Court Martial commenced
with Captain C. Blois replacing Captain H. A.
Forget. At the commencement of the proceedings
the same objections were raised by petitioner as
were raised at the preceding Court Martial. These
objections were dismissed by the Court Martial.
The Court Martial was then adjourned until April
28, 1980 (the date 1981 must be intended) in order
that a decision could be made on the present
petition which was produced on December 29,
1980.
There are nine counts in the complaint, the first
five being laid by virtue of section 120 of the
National Defence Act and the last four being laid
under sections 115(a) or 119 of the National
Defence Act. The charges laid under section 120 of
the National Defence Act are with respect to the
first count for breach of section 245(2) of the
Criminal Code (assault causing bodily harm) and
with respect to the second, third, fourth and fifth
counts for breaches of section 245(1) of the
Criminal Code for common assault, one of the said
common assaults being against the same person
petitioner is charged with assaulting and causing
bodily harm to under the first count, and the other
three common assault charges being assaults
against three other persons.
The decision of the Judge Advocate Lieutenant-
Colonel J. P. Plouffe dismissing the objections
raised at the opening of the Court Martial on
December 9, 1980, indicates that he gave very
careful consideration to all the arguments raised
and the jurisprudence cited which arguments and
jurisprudence have been raised again in the present
petition for writ of prohibition. He concluded that
(1) Charges laid under section 120 of the National
Defence Act are service offences which include
offences under this Act, the Criminal Code, or any
other Act of the Parliament of Canada committed
by a person while subject to the Code of Service
Discipline.
(2) Section 120(1)(a) of the National Defence Act
which includes as an offence under that Act
offences that take place in Canada whether pun
ishable under Part XII of the National Defence
Act or which come under the Criminal Code or
any other Act of the Parliament of Canada is intra
vires the Parliament of Canada by virtue of the
provisions of section 91(7) of The British North
America Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] giving the
federal Parliament authority over "Militia, Mili
tary and Naval Service, and Defence" and that it
was not adopted pursuant to section 91(27) by
virtue of the federal authority over the criminal
law. As a result section 92(14) of The British
North America Act, 1867 giving the provincial
Legislatures authority over "The Administration
of Justice in the Province, including the Constitu
tion, Maintenance and Organization of Provincial
Courts, both of Civil and of Criminal Jurisdiction,
and including Procedure in Civil Matters in those
Courts" is not applicable.
(3) With respect to the Canadian Bill of Rights
argument to the effect that the counts 2, 3, 4 and 5
which would carry a six-month's prescription
under section 721(2) of the Criminal Code where
as a three-year prescription applies in the National
Defence Act, this is not contrary to the Canadian
Bill of Rights. He points out that the Code of
Service Discipline contained in the National
Defence Act provides for different tribunals, differ
ent penalties and different prescriptions for the
military. This is the situation in all Western coun
tries since time immemorial and in Canada at least
since 1868. By joining the Armed Forces a soldier
does not escape from the jurisdiction of civilian
tribunals, and by doing so he voluntarily submits
to the supplementary juridical obligation provided
for in Canadian military law. He refers to the
Supreme Court cases of MacKay, Lavell and
Prata, interpreting the Canadian Bill of Rights
which hold that it does not require that all groups
of citizens be treated in the same fashion, but
provided the legislation has a valid federal objec
tive, and individuals in the same group are treated
equally it is not applicable. He refers to the Court
Martial in Europe of one Corporal Mallard in
which Colonel Barnes upheld an argument similar
to that raised in the present case on the question of
prescription, on the basis that justice delayed is
justice denied, apparently founding his judgment
on equitable arguments since there was a long
delay in bringing the proceedings. Colonel Barnes
declined jurisdiction on a charge laid under section
245(1) of the Criminal Code. In the present case
Lieutenant-Colonel Plouffe finds that there was no
abuse of procedure based on the Crown delaying
too long in laying the Court Martial charges (this
might be arguable since the offences charged in
the first five counts took place on July 31, August
2 and August 8, 1979, and the charges were only
laid on March 21, 1980).
In any event neither the decision of Colonel
Barnes nor the decision of Lieutenant-Colonel
Plouffe in the present case are binding on the
Court, and if I have referred in some detail to the
decision of Lieutenant-Colonel Plouffe it is not
that the present proceedings constitute an appeal
from it, but because it constitutes a convenient
summary of the arguments submitted by petitioner
in seeking the present writ of prohibition, and the
answers which the respondents make with respect
to same.
The first issue to be decided is whether a writ of
prohibition can lie in the present circumstances. In
rendering a judgment refusing it in the case of
MacKay v. Rippon [[1978] 1 F.C. 233] (which
later went to the Supreme Court on an appeal
from the Court Martial Appeal Court, in which
the Supreme Court judgment, dated July 18, 1980,
will be referred to later) Cattanach J. pointed out
that prohibition, like all prerogative writs, is a
discretionary remedy. He stated that it should
have been raised as a plea in bar of trial before the
Court Martial (that was done in this case and the
objections were dismissed). He then goes on to
state that if that had been done and the Standing
Court Martial had been adverse special jurisdic
tion could have been raised before the Court Mar
tial Appeal Court from which there is a further
appeal to the Supreme Court of Canada. The right
to review a decision of the Court Martial by the
Federal Court of Appeal under section 28 of the
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10
is specifically precluded by virtue of subsection (6)
of that section. He goes on to say [at page 246]:
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 a prerogative writ.
This argument was also raised in the present
proceedings, but petitioner's counsel puts a differ
ent interpretation on the significance of the exclu
sion of section 28 application in proceedings for
service offences under the National Defence Act,
arguing that it is significant that there is no simi
lar exclusion in the jurisdiction of the Trial Divi
sion over prerogative writs under section 18. Ref
erence was made to section 198 of the National
Defence Act which reads:
198. 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 he has under the law of
Canada.
Petitioner's counsel contends that the finding of
the Court Martial that it had jurisdiction and the
rejection of his arguments is not an appealable
judgment at that stage of the proceedings, the
Court Martial merely having been adjourned to
April 28 while awaiting the outcome of the deci
sion on the writ of prohibition. At that stage it will
be continued, whether on all nine counts if the writ
of prohibition is rejected, or in any event on the
last four counts even if the writ is granted. While
he fears that he might be sentenced to confinement
if convicted on any of the first five counts he
suggests that this might not be the case with
respect to the last four counts which deal with
false declarations in documents in connection with
reports which he made of the incidents. Since in
the National Defence Act there is no provision for
bail or for stay of execution of judgment, if he
adopted the appeal procedure to the Court Martial
Appeal Court and later if possible to the Supreme
Court of Canada, he would if he had been convict
ed on any of the first five counts and sentenced to
confinement as a result thereof have to remain in
confinement throughout the hearings of the
appeals which would probably not be finally decid
ed until after the sentence had been served, which
would be prejudicial. It is for that reason that he
seeks a writ of prohibition so that if it is granted
the Court Martial could only proceed with respect
to the last four counts and he might well be at
liberty while awaiting the outcome of the various
appeals.
Against this counsel for respondents argues that
by proceeding by way of a writ of prohibition
rather than using the appeal procedures available
under the National Defence Act petitioner can
create a delay of trial on the first five counts until
after the likely appeals to the Federal Court of
Appeal and eventually to the Supreme Court of
Canada, and by the time it is finally determined
that the prohibition should not have been issued, if
such is the case, and the Court Martial could
proceed on those counts witnesses might no longer
be available or the facts obscured by passage of
time. Both arguments are arguments of conve
nience and should not affect the discretionary
decision of whether a writ of prohibition can be
granted or not. Certainly the fact that a person
convicted under the National Defence Act and
sentenced to confinement may have to remain in
confinement while awaiting the outcome of the
appeals open to him under that Act is not in itself
ground for attempting to by-pass the normal
appeal procedure and seek to proceed instead by
way of writ of prohibition. However in the circum
stances of this case I do not find it necessary to
decide whether the Court has authority to issue a
writ of prohibition when appeal procedure under
the National Defence Act is available, since on the
merits of the case I have reached the conclusion
that it should not be issued in any event.
It is now desirable to deal with the basis for this
conclusion since the petitioner's arguments, based
on the constitutionality of section 120 of the Na
tional Defence Act, and the effect of the Canadian
Bill of Rights in view of the prejudice caused to
petitioner as a result of the longer prescription
under the National Defence Act, were both very
fully argued with considerable reference to
jurisprudence.
The second issue to be dealt with in this matter
is petitioner's claim that section 120 of the Na
tional Defence Act is ultra vires in incorporating
globally into that statute all Criminal Code
offences. Part V of the National Defence Act is
headed "Service Offences and Punishments" and
sections 62 to 119 inclusive deal with service
offences whereas section 120 has the effect of
categorizing offences under the Criminal Code,
not otherwise service offences as service offences
and it is this to which petitioner takes exception.
Petitioner relies in part on the Supreme Court
decision in the case of The Queen v. Hauser' in
which it was found however that a charge laid by
the Attorney General of Canada under the Nar
cotic Control Act was properly so laid notwith
standing the provisions of section 2 of the Criminal
Code which reads:
2....
"Attorney General" means the Attorney General ... of a
province in which proceedings to which this Act applies are
taken and, with respect to
1 [I979] I S.C.R. 984.
(b) proceedings instituted at the instance of the Government
of Canada and conducted by or on behalf of that Govern
ment in respect of a violation of or conspiracy to violate any
Act of the Parliament of Canada or a regulation made
thereunder other than this Act,
means the Attorney General of Canada ... ;
It was found that the Narcotic Control Act was
such a statute. In rendering judgment Pigeon J.
stated at page 992:
From a constitutional point of view, the distinction properly
should be between enactments founded on the criminal law
power and other enactments, as was pointed out on behalf of
the three provinces which accept that, in legislating under any
other head of power, the federal Parliament can completely
provide for prosecutions by federal officials, although they deny
such power for the enforcement of criminal law strictly so
called.
Spence J. in his judgment at page 1003 stated:
I can see no bar to Parliament, in the discharge of its valid
legislative power, providing that as to certain duties or proce
dures the provincial officials shall not be used exclusively but
the power may also be exercised by a federal official who may
be the Attorney General of Canada or any investigating or
prosecuting agency designated by Parliament.
If it is conceded as it must be that the National
Defence Act was legislated by virtue of section
91(7) of The British North America Act, 1867
rather than section 91(27) dealing with criminal
law even though it incidentally may incorporate
offences under criminal law, then it would appear
that section 120 is valid federal legislation.
Reference was also made by petitioner to the
case of Regina v. Pontbriand 2 in which at page
110 Associate Chief Justice Hugessen stated:
To put the matter another way, the powers and privileges of
the Attorney General to conduct, supervise and control crimi
nal prosecutions are more than a matter of simple procedure
but go to the very heart of the administration of criminal
justice. The right to legislate in relation to those powers and
privileges was, by ss. 92(14) and 135 of the B.N.A. Act,
reserved to the provincial legislatures. Parliament, having the
right to legislate on the procedure in criminal matters, may add
to those powers and privileges but cannot take them away. In
particular, Parliament cannot create its own Attorney General
and seek to give him rights relating to the administration of
criminal justice similar in nature and scope to those exercised
by the Attorney General at the time of Confederation. Since
the definition of "Attorney General" in s. 2 of the Criminal
Code purports to do just this, it is, to that extent, ultra vires.
2 (1978) 1 C.R. (3d) 97.
This was a Narcotic Control Act case however
decided before the Supreme Court judgment in the
case of The Queen v. Hauser. Petitioner argues
that section 120 of the National Defence Act
would not be ultra vires if it were limited to the
prosecution of offences taking place outside
Canada but when criminal prosecutions are taken
by virtue of it in one of the provinces in Canada it
is then an interference with sections 92(14) and
135 of The British North America Act, 1867 and
that by virtue of section 2 of the Criminal Code
such prosecutions can only be undertaken by the
Attorney General of the province in prosecuting an
offence under the criminal law.
Reference was also made to the Supreme Court
case of MacKay v. The Queen [[1980] 2 S.C.R.
370], a judgment dated July 18, 1980, also dealing
with a Court Martial procedure in narcotic
offences. One of the questions submitted for Court
was whether "the National Defence Act, in as far
as it permits criminal proceedings before service
tribunals for offences committed in Canada con
trary to the Narcotic Control Act or the Criminal
Code to be instituted and conducted by military
prosecutor and not by the Attorney General of a
province or the Attorney General of Canada, ultra
vires the Parliament of Canada?" Although this
question was fully argued in factums submitted to
the Court it was not raised nor argued before the
Court in view of the fact that the Hauser case had
decided that offences under the Narcotic Control
Act were not criminal offences. The question of
whether offences against the Criminal Code could
be conducted under the procedure set out in the
National Defence Act was therefore not decided.
In rendering judgment however at page 397 of the
reasons Justice Ritchie states:
The power to allow prosecutions by military authorities is a
necessary aspect of dealing with service offences, which have
always been considered part of military law. The legislation
here derives its force from s. 91(7) and therefore there is no
possible application for provincial powers under s. 91(24) *.
The legislation is therefore exclusive to the power of Parlia
ment, even for those matters which would normally fall under
the Criminal Code, or the Narcotic Control Act but which,
through the legislation and the application of military law
properly fall into the category of service offences.
* Evidently section 92(14) is intended.
While this may have been obiter dicta under the
circumstances it should be pointed out that his
reasons were concurred in without comment by
Justices Martland, Pigeon, Beetz and Chouinard.
Chief Justice Laskin at page 376 of his dissent
ing judgment stated:
The contention, here, however, is that in respect of s. 120 of the
National Defence Act and of its supporting provisions, there
has been a clear departure from an internal military code by
the provision for prosecution, through military tribunals, of
offences under the ordinary criminal law but without putting
the accused members of the armed forces in the same position
under that law as are other members of the public when
similarly charged.
At page 377 he states:
There are some offences included in the category of service
offences which are similar to Criminal Code offences but are
separately dealt with as, for example, stealing in s. 104 and
receiving under s. 105. These do not detract from the embracive
character of s. 120 and it may be, although it is unnecessary to
decide this here, that there is a choice in charging an accused in
such cases either under the Criminal Code or under the par
ticular sections just mentioned.
At page 380 he states:
In my opinion, it is fundamental that when a person, any
person, whatever his or her status or occupation, is charged
with an offence under the ordinary criminal law and is to be
tried under that law and in accordance with its prescriptions, he
or she is entitled to be tried before a court of justice, separate
from the prosecution and free from any suspicion of influence
of or dependency on others. There is nothing in such a case,
where the person charged is in the armed forces, that calls for
any special knowledge or special skill of a superior officer, as
would be the case if a strictly service or discipline offence,
relating to military activity, was involved. It follows that there
has been a breach of s. 2(/) of the Canadian Bill of Rights in
that the accused, charged with a criminal offence, was entitled
to be tried by an independent and impartial tribunal.
After quoting section 2(f) of the Canadian Bill of
Rights he concludes [at page 380]:
In short, I regard the provisions of the National Defence Act as
inoperative in so far as they provide for the trial of offences
against the ordinary law by service tribunals.
This dissenting judgment is based on the Canadian
Bill of Rights argument which was also raised in
the present matter and will be considered later
rather than on the constitutionality of section 120.
Justice McIntyre in his judgment which was
supported by Justice Dickson states at pages
408-409:
Section 2 of the National Defence Act defines a service
offence as "an offence under this Act, the Criminal Code, or
any other Act of the Parliament of Canada, committed by a
person while subject to the Code of Service Discipline". The
Act also provides that such offences will be triable and punish
able under military law. If we are to apply the definition of
service offence literally, then all prosecutions of servicemen for
any offences under any penal statute of Canada could be
conducted in military courts. In a country with a well-estab
lished judicial system serving all parts of the country in which
the prosecution of criminal offences and the constitution of
courts of criminal jurisdiction is the responsibility of the provin
cial governments, I find it impossible to accept the proposition
that the legitimate needs of the military extend so far. It is not
necessary for the attainment of any socially desirable objective
connected with the military service to extend the reach of the
military courts to that extent. It may well be said that the
military courts will not, as a matter of practice, seek to extend
their jurisdiction over the whole field of criminal law as it
affects the members of the armed services. This may well be so,
but we are not concerned here with the actual conduct of
military courts. Our problem is one of defining the limits of
their jurisdiction and in my view it would offend against the
principle of equality before the law to construe the provisions of
the National Defence Act so as to give this literal meaning to
the definition of a service offence. The all-embracing reach of
the questioned provisions of the National Defence Act goes far
beyond any reasonable or required limit. The serviceman
charged with a criminal offence is deprived of the benefit of a
preliminary hearing or the right to a jury trial. He is subject to
a military code which differs in some particulars from the civil
law, to differing rules of evidence, and to a different and more
limited appellate procedure. His right to rely upon the special
pleas of "autrefois convict" or "autrefois acquit" is altered for,
while if convicted of an offence in a civil court he may not be
tried again for the same offence in a military court, his
conviction in a military court does not bar a second prosecution
in a civil court. His right to apply for bail is virtually eliminat
ed. While such differences may be acceptable on the basis of
military need in some cases, they cannot be permitted universal
effect in respect of the criminal law of Canada as far as it
relates to members of the armed services serving in Canada.
He again was dealing with the Canadian Bill of
Rights argument. Chief Justice Laskin states how
ever at page 386:
The result is that s. 120 of the National Defence Act must be
held to be inoperative in so far as it subjects members of the
armed forces to a different and, indeed, more onerous liability
for a breach of the ordinary law as applicable to other persons
in Canada who are also governed by that law.
It will be seen that there appears to be a differ
ence in judicial thinking in the Supreme Court as
to whether the prosecution of offences against the
Criminal Code brought into the National Defence
Act by virtue of section 120 can properly be prose
cuted by Court Martial procedure, or whether this
would not be an infringement of the Canadian Bill
of Rights, with five judges holding that prosecu
tion in this manner does not constitute such an
infringement while four hold that it would (Justice
Estey having concurred in the dissenting judgment
of the Chief Justice). Although dissenting in his
discussion of the desirability of prosecuting
offences under the Criminal Code Justice McIn-
tyre, with Justice Dickson concurring agreed that
in the case at bar, being prosecutions of trafficking
and the possession of narcotics, they were offences
sufficiently connected with the service to come
within the jurisdiction of a military court.
It cannot be held, in the present state of the
jurisprudence therefore that section 120 of the
National Defence Act is ultra vires with respect to
the prosecution of offences in Canada nor that
they cannot be properly prosecuted under the
provisions of the National Defence Act.
The third issue to be decided is whether the
prosecution of petitioner under the second, third,
fourth and fifth counts of the indictment by way of
military Court Martial procedure when they would
already have been prescribed had the proceedings
been taken by virtue of the Criminal Code is
contrary to the Canadian Bill of Rights. This
argument was dealt with very thoroughly in great
depth in the MacKay case (supra) although the
issue of prescription did not arise in that action.
There is no advantage in repeating these argu
ments at this stage of the proceedings. If section
59 of the National Defence Act providing a three-
year prescription for all offences set out therein
(which of course include those Criminal Code
offences incorporated by virtue of section 120) is
not ultra vires, and I do not conclude that it is,
then the question arises whether this is not merely
a question of procedure. Certainly if it is contrary
to the Canadian Bill of Rights, as petitioner con
tends, to prosecute Criminal Code offences under
the National Defence Act after they would have
been prescribed if prosecuted under the Criminal
Code if such offences were prosecuted in Canada,
it would be even more discriminatory to say that
they could be prosecuted abroad under the Na
tional Defence Act at any time before the expira-
tion of the three-year prescription period whereas
a person prosecuted in Canada for similar offences
would be protected by prescription unless such
prosecution were brought within six months. While
petitioner argues that the six-month prescription
provided in the Criminal Code could be applied
even if the offences were prosecuted abroad, I find
no merit in this argument even though some sup
port for it may be found in the decision of Colonel
Barnes in the Corporal Mallard case in Europe
which is of course not in any way binding on the
Court. It a Court Martial is brought abroad under
the provisions of the National Defence Act, it is
clearly the three-year prescription of that Act
which would have to be applied and not the six-
month prescription provided in the Criminal Code.
Respondents argue that section 27(2) of the
Interpretation Act 3 may also be applied. The said
section reads as follows:
27... .
(2) All the provisions of the Criminal Code relating to
indictable offences apply to indictable offences created by an
enactment, and all the provisions of the Criminal Code relating
to summary conviction offences apply to all other offences
created by an enactment, except to the extent that the enact
ment otherwise provides. [Emphasis mine.]
While petitioner argues that this only applies to
Criminal Code offences it is significant that it
refers to "an" enactment which might well include
the National Defence Act which "enactment other
wise provides".
Respondents also refer to section 244(4) of the
Income Tax Act, S.C. 1970-71-72, c. 63 which
provides for a five-year prescription with respect to
summary complaints in place of the six-month
prescription of the Criminal Code. In the case of
Smythe v. The Queen 4 in which it was argued that
the decision to prosecute by indictment pursuant to
section 132(2) of the Income Tax Act (as it then
was) which provided a minimum of two months'
imprisonment rather than by summary conviction
under the provisions of section 131(1) was con
trary to the Canadian Bill of Rights it was held
[headnote, page 681]:
3 R.S.C. 1970, c. I-23.
4 [1971] S.C.R. 680.
The provisions of s. 132(2) of the Act are not discriminatory
and do not offend the principle of equality before the law. They
do not, by themselves, place any particular person or class of
persons in a condition of being distinguished from any other
member of the community. They are applicable without distinc
tion to everyone. The manner in which a Minister of the Crown
exercises a statutory discretionary power conferred upon him
for the proper administration of a statute is irrelevant in the
consideration of the question whether the statute, in itself,
offends the principle of equality before the law. Enforcement of
the law and especially of the criminal law would be impossible
unless someone in authority be vested with some measure of
discretionary power. If an authority such as the Attorney
General can have the right to decide whether or not a person
shall be prosecuted, surely he may, if authorized by statute,
have the right to decide what form the prosecution shall take.
The situation is not altered because s. 132(2) provides for a
minimum term of imprisonment.
This decision was referred to by Ritchie J. in his
judgment in the MacKay case.
Respondents further contend that when an
individual enlists in the Armed Forces he volun
tarily submits to abide by the provisions of the
National Defence Act which includes the Code of
Service Discipline set out therein, including the
incorporation of criminal law offences not specifi
cally of a service nature by section 120 and the
three-year prescription of section 59 and that pro
vided he is not treated differently from any other
enlisted member of the Armed Forces he cannot
invoke discrimination under the provisions of the
Canadian Bill of Rights.
While petitioner argues that there is no valid
federal objective to sustain section 59 of the Na
tional Defence Act providing a longer prescription
than that provided in the Criminal Code for sum
mary conviction offences included by virtue of
section 120, nevertheless he does not seek that it be
held invalid but merely that it be found to be
inoperative in cases where the six-month prescrip
tion period has expired so that the accused would
no longer be liable for prosecution under the provi
sions of the Criminal Code for charges of common
assault.
Although this argument may be somewhat
stronger on the Canadian Bill of Rights issue than
on the constitutional issue which I have already
dealt with I do not conclude on examination of the
Supreme Court of Canada jurisprudence arising
out of the Canadian Bill of Rights that there is
sufficient support for his contention to justify a
finding which appears to go contrary to the
majority view in the MacKay case, even though it
did not directly decide the issue in the present
proceedings.
I therefore conclude that, even if the writ of
prohibition could lie in the present proceedings
despite appeal procedures being available to the
petitioner under the provisions of the National
Defence Act, which is highly doubtful, such writ
should not be issued on the basis of the issues of
law raised in the present case.
ORDER
Petitioner's application for a writ of prohibition
herein is dismissed with costs.
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