T-2094-89
John Robert Duncan (Applicant)
v.
Minister of National Defence, Commander,
Canadian Forces Europe, Base Commander,
Canadian Forces Base Baden-Soellingen, Base
Operations Officer, Canadian Forces Base Baden-
Soellingen, Commandant, Canadian Forces Ser
vice Prison & Detention Barracks (Respondents)
INDEXED AS: DUNCAN V. CANADA (MINISTER OF NATIONAL
DEFENCE) (T.D.)
Trial Division, Muldoon J.—Vancouver, March 1
and 16, 1990.
Judicial review — Prerogative writs — Prohibition
Armed Forces captain appealing dismissal of appeal from
sentence imposed by military tribunal upon drive over 80
conviction — Decision-maker basing decision on subordinate's
recommendation — Appellant not having direct access to
decision-maker -- Decision of designated authority reviewable
— Right to fundamental justice including right to fair proce
dure and benefit of audi alteram partem denied — Procedure
unconstitutional — Prohibition granted.
Armed Forces — S. 230 National Defence Act — Sentence
appeal from military tribunal decision — ADM(Per) deciding
appeal based on advice of subordinate, DPLS — Appellant
denied direct access to ADM(Per) — Procedure unconstitu
tional — Fundamental justice, Charter s. 7 rights violated.
Constitutional law — Charter of Rights — Life, liberty and
security — Sentence appeal from military tribunal decision
Armed Forces captain appealing sentence: four-month prison
term, dismissal from H.M. service — Having no opportunity
to put case before decision-maker who relied on recommenda
tions of subordinate — Fundamental justice denied — S. 7
Charter rights violated — S. 7 rights including right to fair
procedure and fair hearing — In matter involving liberty and
security both parties having right of direct access to decision-
maker — Procedure not justified under Charter s. 1.
The applicant, a captain in the Canadian Armed Forces
stationed at Baden-Soellingen in the Federal Republic of Ger-
many, was charged with driving with over 80 mgs of alcohol in
100 mls. of blood, contrary to paragraph 237(1)(b) of the
Criminal Code. He was convicted by a Standing Court Martial
and sentenced to four months' imprisonment. Under the Na
tional Defence Act, such a sentence is deemed to include
dismissal from H.M. Service. The applicant's appeal as to
conviction was dismissed by the Court Martial Appeal Court of
Canada and his sentence appeal, under section 230 of the Act,
was dismissed by the Assistant Deputy Minister of Personnel
("ADM(Per)"), the authority designated to hear such an
appeal.
This was a motion for a writ of prohibition prohibiting the
carrying out of the sentence as contrary to sections 7, 9, and
subsections 15(1) and 24(1) of the Charter. At issue was the
fairness of the severity-of-sentence appeal procedure which was
neither statutory nor prescribed in the Queen's Regulations and
Orders.
The applicant argued that the procedure prevented direct
access to the ADM(Per) who made his decision based upon the
submissions and recommendation of his subordinate, the Direc
tor of Personnel Legal Services ("DPLS"). The applicant was
not made aware of the submissions of the DPLS nor given an
opportunity to answer them or to make submissions directly to
the ADM(Per).
Held, a writ of prohibition should be granted.
The procedure for sentence appeals from decisions of mili
tary tribunals was unconstitutional. The ADM(Per) is a "feder-
al board, commission or other tribunal" and the exercise of his
powers were subject to review. The decision-maker accorded
the applicant no opportunity to make submissions except
through his subordinate and decided the sentence appeal with
out having considered the applicant's case. The applicant's
right to fair procedure, to fundamental justice and to the
benefit of audi alteram partem had been denied. His rights
under Charter section 7 were violated. The respondents failed
to demonstrate any Charter section 1 justification of the proce
dure. In a serious matter involving the liberty and security of
the person, both parties have the right to direct access to the
mind or conscious understanding of the decision-maker. An
individual subject to penal consequences such as imprisonment
is entitled to the highest procedural protection known to the
law.
In this case an oral hearing was not strictly necessary if the
applicant's submissions could have been laid before the
ADM(Per) after counsel had an opportunity to review what the
DPLS had submitted.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C., 1985, Appendix III, s.
2(e).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 1, 2, 7, 11W,(h), 15, 33.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No.
44], s. 52(1).
Criminal Code, R.S.C. 1970, c. C-34, s. 237(1)(a) (as
am. by S.C. 1985, c. 19, s. 36),(b) (as am. idem).
Criminal Code, R.S.C., 1985, c. C-46, ss. 675(1)(b),
676(1)(d) (as am. idem (1st Supp.), c. 27, s. 139), 685,
687, 688.
Federal Court Act, R.S.C., 1985, c. F-7, s. 2.
Immigration Act, 1976, S.C. 1976-77, c. 52.
National Defence Act, R.S.C. 1970, c. N-4, s. 120.
National Defence Act, R.S.C., 1985, c. N-5, ss. 130,
140(c), 212, 233.
CASES JUDICIALLY CONSIDERED
APPLIED:
Mehr v. Law Society of Upper Canada, [1955] S.C.R
344; [1955] 2 D.L.R. 289; In re Anti-dumping Tribunal
and re transparent sheet glass, [1972] F.C. 1078; 30
D.L.R. (3d) 678 (T.D.); Singh et al. v. Minister of
Employment and Immigration, [1985] 1 S.C.R. 177;
(1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14
C.R.R. 13; 58 N.R. 1.
CONSIDERED:
R. v. Wigglesworth, [1987] 2 S.C.R. 541; (1987), 45
D.L.R. (4th) 235; [1988] 1 W.W.R. 193; 61 Sask R. 105;
37 C.C.C. (3d) 385; 60 C.R. (3d) 193; 81 N.R. 161.
REFERRED TO:
Ernewein v. Minister of Employment and Immigration,
[1980] 1 S.C.R. 639; (1979), 103 D.L.R. (3d) 1; 14
C.P.C. 264; 30 N.R. 316; Wilson v. Minister of Justice,
[1985] 1 F.C. 586; (1985), 13 Admin. L.R. 1; 20 C.C.C.
(3d) 206; 6 C.P.R. (3d) 283; 46 C.R. (3d) 91; 16 C.R.R.
271; 60 N.R. 194 (C.A.); Duncan v. Canada (Minister of
National Defence) (1989), 52 C.C.C. (3d) 86 (F.C.T.D.).
COUNSEL:
Mel R. Hunt for applicant.
Commander S. J. Blythe for respondent
Canadian Forces.
Gordon P. Macdonald for respondent Minis
ter of National Defence.
SOLICITORS:
Goult, McElmoyle & McKinnon, Victoria, for
applicant.
Assistant Judge Advocate General, Pacific
Region, Victoria, for respondent Canadian
Forces.
Macdonald & McNeely, Victoria, for
respondent, Minister of National Defence.
The following are the reasons for order ren
dered in English by
MULDOON J.: The applicant is a captain, and an
aeroplane pilot serving in the Armed Forces at
Base Baden-Soellingen in the Federal Republic of
Germany (hereinafter: F.R.G.). By all accounts he
is, and has been, throughout his career, a first-rate
officer, evincing leadership and morale-building
qualities in that role and a first-rate pilot evincing
skill in flying and knowledge of the operational
theatre in which he serves.
The factual background circumstances of the
matter begin on February 21, 1988 at about 00:40
hours when the applicant driving a motor vehicle
was stopped at a roadblock established by military
police outside of the main gate of Canadian Forces
Base (CFB), Baden-Soellingen, F.R.G. When he
emerged from his vehicle the applicant was
observed to be swaying and unsteady of stance. In
the upshot, having agreed to a breathalizer test,
the applicant produced two samples indicating that
the concentration of alcohol in his blood was 160
milligrams in 100 millilitres, or twice the permissi
ble maximum of 80 mgs in 100 mls.
On April 27 and 28, 1988, Capt. Duncan, the
applicant, was tried by a Standing Court Martial
(SCM) at CFB Lahr on two charges, in the alter
native, punishable under section 120 of the Na
tional Defence Act [R.S.C. 1970, c. N-4] (now
R.S.C., 1985, c. N-5, s. 130): (1) operating a
motor vehicle having consumed alcohol in such a
quantity that the concentration thereof in his blood
exceeded 80 mgs of alcohol in 100 mls of blood,
contrary to paragraph 237 (b) of the Criminal
Code [R.S.C. 1970, c. C-34 (as am. by S.C. 1985,
c. 19, s. 36)]; or (2) operating a motor vehicle
while his ability to do so was impaired by alcohol
or a drug, contrary to paragraph 237(a) [as am.
idem] of the Criminal Code. The applicant plead
ed "not guilty".
After a trial on the charges, the SCM ordered a
stay of proceedings in respect to the second charge,
found the applicant to be guilty of the first charge,
and sentenced him to a term of four months'
imprisonment, a carceral punishment which, by
virtue of paragraph 140(c) of the National
Defence Act [R.S.C., 1985, c. N-5] (hereinafter:
the Act or the NDA) is deemed to include a
punishment of dismissal from Her Majesty's ser
vice, whether or not such dismissal be specified in
the sentence passed by a service tribunal. The
convening authority reviewed the proceedings and
did not alter the conviction or the sentence.
The applicant, Capt. Duncan, instituted an
appeal against the conviction and another against
the severity of the sentence. On October 10, 1989,
the Court Martial Appeal Court of Canada unani
mously dismissed his appeal (CMAC 304) against
his conviction.
The procedure invented and adopted by or on
behalf of the respondent Minister concerning
severity of sentences is different from the norms of
Canadian law and jurisprudence in regard to
which it seems almost foreign in its operation as
revealed by and in this case. The provisions of the
NDA which, being distinct from the invented
procedure, are rather unexceptionable, and which
are in the first place directly pertinent here, are:
Right to Appeal
230. Every person who has been tried and found guilty by a
court martial has, ... a right to appeal in respect of any or all
of the following matters:
(a) the severity of the sentence;
Preliminary Disposition of Appeals
233. (1) Where an appeal relates only to the severity of the
sentence, the Judge Advocate General shall forward the State
ment of Appeal to an authority that, under section 212, has
power to mitigate, commute or remit punishments and that
authority may dismiss the appeal or, subject to Part VIII, may
mitigate, commute or remit the punishments comprised in the
sentence.
From the point of the right to appeal against
severity being established and supported by the
Judge Advocate General's forwarding of the state-
ment of appeal on to the designated authority, the
procedure is not statutory, nor is it prescribed in
the Queen's Regulations and Orders (QR & 0). A
copy of the applicant's statement of appeal is
exhibit "A" to his affidavit filed herein. As noted,
the procedure is truly an invention of an author or
authors not identified specifically in this case at
least. It is, however, described in the affidavits of
Capt. (N) Peter Richard Partner filed and of
Capt. (N) William Arthur Reed, filed herein.
The parties agree that the authority designated
in subsection 233(1) is the Assistant Deputy Min
ister (Personnel) of the Department of National
Defence (hereinafter referred to as ADM(Per)).
The applicant's most cogent complaints in this
matter are about that procedure whereby appeals
against the severity of the sentences are decided. It
appears that the invented procedure is specifically
designed to prevent the appellant from having any
direct oral or written access to the mind, con
sciousness and understanding of the ADM(Per)
who is going to make a decision about the severity
of the appellant's sentence.
The procedure adopted here is the bone of con
tention between the parties. This is not clearly
indicated in the applicant's notice of motion, the
pertinent passages of which run as follows:
THE MOTION is for a Writ of Prohibition directing that the
respondents be prohibited from imprisoning the applicant,
JOHN ROBERT DUNCAN, in any service detention barracks
under their control in relation to the sentence imposed upon
him at the conclusion of his Standing Court Martial on April
28, 1988.
THE GROUNDS of the motion are Sections 7, 9, 15(1) and 24(1)
of the Canadian Charter of Rights and Freedoms.
The notice is infelicitously expressed in that the
provisions of the Charter [Canadian Charter of
Rights and Freedoms, being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44]] are hardly grounds in and of themselves,
but, related to the salient facts, they could perhaps
provide gounds for the remedy. In any event, the
salient facts are so fully known to the respondents
from the beginning and, indeed so proudly promot-
ed and presented by them that the notice can not
have misled them.
The key official in the procedure which is in
vogue, is the Director of Personnel Legal Services
(DPLS) on the staff of the ADM(Per). At the
material times the DPLS was Capt. (N) Peter
Richard Partner. It was he with whom the appli
cant's counsel entered into communication about
the applicant's appeal relating to severity of sen
tence. Capt. (N) Partner swore out two affidavits,
filed herein, on October 11, 1989, and again on
November 1, 1989. The earlier affidavit was filed
on October 17, 1989, but it is not included in the
respondents' record which was filed on November
3, 1989. In that earlier affidavit Capt. (N) Partner
deposes:
2. THAT my duties include the preparation of submissions to
the Assistant Deputy Minister (Personnel) in respect of appeals
as to severity of sentences made by members of the Canadian
Forces who have been tried and found guilty by courts martial
of offences under the Code of Service Discipline.
3. THAT these submissions contain recommendations concern
ing the disposition of appeals as to severity of sentences by the
[ADM(Per)] in his capacity under the National Defence Act as
an authority having power to mitigate, commute or remit any
and all of the punishments included in a sentence passed by a
service tribunal.
5. THAT in the course of considerable discussion with [the
applicant's counsel] Mr. Hunt, who is personally known to me
as a former member of the Canadian Forces Legal Branch and
sometime staff officer in the Directorate of Personnel Legal
Services, and therefore familiar with the procedure and process
in respect of appeals as to the severity of sentence, the nature of
my proposed recommendations to the [ADM(Per)] in Captain
Duncan's case and the reasons for those recommendations were
fully explained to Mr. Hunt. [Emphasis not in original text.]
Paragraph 5, above, seems to argue ad hominem
that, by virtue of his previous position and conse
quent knowledge, the applicant's counsel might
somehow be estopped from articulating his client's
complaint. Such, of course, is not the case at all
and never could be, for mere knowledge of
impugned procedures and even counsel's past com
plicity in them constitute no waiver of the appli
cant's complaint, which must stand or fall on its
own merits.
The prelude of the applicant's complaint can be
seen in the emphasized portion of Capt. (N) Part
ner's paragraph 5 above. There would be nothing
amiss if the DPLS's recommendations to the
ADM(Per) and the reasons for them stood on an
equal plane of presentation with those of the appli
cant or his counsel. As the evidence indicates
further, however, the DPLS meant that his recom
mendations enjoyed exclusive presentation to the
ADM(Per). This conclusion is further borne out in
the last three paragraphs of DPLS Capt. (N)
Partner's earlier affidavit:
9. THAT in the course of discussion with [the applicant's coun
sel] Mr. Hunt, it was made clear to him that no hearing would
be scheduled in Captain Duncan's case since, a fact which I
have reason to believe he already knew, appeals as to severity of
sentence are invariably adjudicated on the basis of written
submissions.
10. THAT Mr. Hunt had ample time to submit further written
particulars of his client's appeal as to severity of sentence
between 9 December 1988, when Captain Duncan delivered his
Statement of Appeal to Canadian Forces authorities, and 27
January 1989, when I forwarded my submission in the Duncan
case of the Assistant Deputy Minister (Personnel), but did not
do so; and that neither Captain Duncan nor his solicitor were
invited to make further submissions in connection with Captain
Duncan's appeal as to severity of sentence since, during his
telephone discussions with me, Mr. Hunt had already present
ed me with detailed and comprehensive arguments why his
client's appeal should be allowed, and these arguments were
given full consideration in formulating any submission and
recommendations to the [ADM(Per)].
11. THAT full and complete disclosure was made to Mr. Hunt
in respect of all matters relating to his client's appeal as to
severity of sentence, and that he was given every opportunity to
and did in fact make oral representations to me on his client's
behalf prior to preparation of my submission to the Assistant
Deputy Minister (Personnel). [Emphasis not in original text.]
This deponent, the DPLS, Capt. (N) Partner,
elaborated on the procedure which is utilized for
appeals of this kind in his second affidavit, as
follows:
3. THAT the usual procedure followed in staffing appeals as to
severity of sentence in the Directorate of Personnel Legal
Services is as follows:
a. on receipt of the Statement of Appeal form from the
Judge Advocate General, a legal officer in my Directorate is
assigned to staff the severity of sentence appeal;
• • •
c. the appellant, or ... counsel for the appellant, is contacted
in writing. The standard letter sent states that the appeal as
to severity of sentence has been received and that if the
appellant wishes to submit further particulars in support of
that appeal then those particulars are to be forwarded to the
Directorate of Personnel Legal Services within a specified
time frame, usually one month. There is a further invitation
to contact the Directorate of Personnel Legal Services if the
appellant or counsel has any questions;
d. after the time frame for the submission of further particu
lars by appellant or counsel for the appellant has expired, a
submission to ADM(Per), an authority designated to adjudi
cate appeals as to severity of sentence, is prepared;
e. this submission is prepared following a lengthy and com
prehensive review and analysis of all precedents and in the
context of all factors bearing on conduct and discipline in the
Canadian Forces as well as all mitigating factors and argu
ments advanced by or on behalf of the offender concerned;
f. more specifically, this submission usually reflects the sub
missions of the prosecutor and the defence at the court
martial, together with the decision of the court. It may
reflect the updating of personnel and career information if
that has changed since trial. It will include a summary of the
further particulars, if any, submitted by the appellant or
counsel for the appellant. In addition, it will address the
principles of sentencing, such as deterrence and rehabilita
tion as they pertain to the case of the appellant. The submis
sion will make a recommendation to the Assistant Deputy
Minister (Personnel) as to what action would be appropriate
in the particular appeal being considered;
g. the submission is reviewed by me personally. After I have
signed it, it is sent to the [ADM(Per)] together with the
Minutes of Proceedings of the court martial and the adminis
trative file. This administrative file will usually include mes
sages relating to the procedures for convening the court
martial, messages sent from the court martial regarding
findings and sentences, notes to file updating information in
the Minutes of Proceedings, and, if submitted, the particulars
of the appellant or counsel for the appellant in support of the
appeal as to severity of sentence;
h. if upon review the Assistant Deputy Minister (Personnel)
has any questions on the matter he will normally contact my
office;
i. after the Assistant Deputy Minister (Personnel) has made
his decision regarding the appeal as to severity of sentence,
the file is returned to the Directorate of Personnel Legal
Services; and
j. the Directorate of Personnel Legal Services then informs
all interested parties, in particular, the appellant, counsel for
the appellant, the Convening Authority who convened the
court martial, and other appropriate career authorities
requiring notification of the results of the appeal. [Emphasis
not in original text.]
The applicant's right to appeal against the
severity of his sentence is clearly accorded in the
NDA. The Court is not concerned with the legality
of the sentence, against which no complaint has
been made, nor yet with the severity of the sen
tence for it is not a matter committed to this
Court's jurisdiction. However, since the
ADM(Per) is undoubtedly a "federal board, com
mission or other tribunal" because he is a person
"having, exercising or purporting to exercise juris
diction or powers conferred by or under an Act of
Parliament" [Federal Court Act, R.S.C., 1985, c.
F-7, s. 2], being sections 212 and 233 of the
National Defence Act, his exercise or purported
exercise of his jurisdiction or powers—the process
impugned in the applicant's appeal—is subject to
review by this Court.
The Constitution, including the Canadian
Charter of Rights and Freedoms, is the supreme
law of Canada, to which all other laws, proce
dures, powers, jurisdiction and process are subject,
including the NDA and, of course, the
ADM(Per)'s performance of his statutory duties.
So, in effect, provides subsection 52(1) of Part
VII, Schedule B, of the Constitution Act, 1982
[Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)
[R.S.C., 1985, Appendix II, No. 44]]. This conclu
sion is all the stronger, if not quite absolute, by
reason of the Charter's fully specific and direct
reference to military law in making only one defer
ential exception to its subordinate status, which
exception is expressed in paragraph 11(f) of the
Charter, an exception which is not otherwise rele
vant here. Thus the rights expressed in section 2
and sections 7 to 15 of the Charter, with three
possible exceptions—reasonable limits under sec
tion 1, temporary legislative override under section
33, and potential override under some national
emergency measures legislation—are supreme.
The latter two are not relevant here. The expressed
rights are not to be violated by the law, its applica
tion or by the conduct of State functionnaries.
The applicant here invokes section 7 of the
Charter, thus:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
It is trite to say that among the principles of
fundamental justice reside the rights to fair proce
dures and a fair hearing. It is notable that the
Canadian Bill of Rights, R.S.C., 1985, Appendix
III, in paragraph 2(e) provides that no law of
Canada shall be applied so as to "deprive a person
of the right to a fair hearing in accordance with
the principles of fundamental justice for the deter
mination of his rights and obligations". This latter
Act of Parliament discloses a pertinent content of
"fundamental justice".
It is equally without dispute that fair procedures
and a fair hearing import the maxims of audi
alteram partem and "only they who hear should
decide". (Mehr v. Law Society of Upper Canada,
[1955] S.C.R. 344, at page 351 and In re Anti-
dumping Tribunal and re transparent sheet glass,
[1972] F.C. 1078 (T.D.), at pages 1108-1109.)
Here the ADM(Per) accorded the applicant no
opportunity to make submissions except through
the DPLS. The ADM(Per) made his decision, not
having heard the applicant's case. Those notions of
fair process come to the same principle, which
resides in both (or in other circumstances, all)
parties' right, in a serious matter involving liberty
and security of the person, to have direct access to
the mind or conscious understanding of the decid-
er, the adjudicator.
In effect, the foregoing is what the Supreme
Court of Canada taught by a double plurality (4
and 4) in Singh et al. v. Minister of Employment
and Immigration, [1985] 1 S.C.R. 177. There the
subject-matter was the appellants' rights to a hear
ing in the determination of their asserted refugee
status pursuant to the Immigration Act, 1976,
S.C. 1976-77, c. 52. The learned judgments ought
to be read and savoured in full in order to gain
understanding of the Court's ratio, but two
extracted passages from Madame Justice Wilson's
reasons are particularly pertinent here [at pages
215-216]:
It seems to me that the basic flaw in [the Minister's coun
sel's] characterization of the procedure under ss. 70 and 71 is
his description of the procedure as non-adversarial. It is in fact
highly adversarial but the adversary, the Minister, is waiting in
the wings. What the Board has before it is a determination by
the Minister based in part on information and policies to which
the applicant has no means of access that the applicant for
redetermination is not a Convention refugee. The applicant is
entitled to submit whatever relevant material he wishes to the
Board but he still faces the hurdle of having to establish to the
Board that on the balance of probabilities the Minister was
wrong. Moreover, he must do this without any knowledge of the
Minister's case beyond the rudimentary reasons which the
Minister has decided to give him in rejecting his claim. It is this
aspect of the procedures set out in the Act which I find
impossible to reconcile with the requirements of "fundamental
justice" as set out in s. 7 of the Charter.
• • •
Under the Act as it presently stands, however, a refugee
claimant may never have the opportunity to make an effective
challenge to the information or policies which underlie the
Minister's decision to reject his claim. Because s. 71(1) requires
the Immigration Appeal Board to reject an application for
redetermination unless it is of the view that it is more likely
than not that the applicant will be able to succeed, it is
apparent that an application will usually be rejected before the
refugee claimant has had an oportunity to discover the Minis
ter's case against him in the context of a hearing. Indeed, given
the fact that s. 71(1) resolves any doubt as to whether or not
there should be a hearing against the refugee claimant, I find it
difficult to see how a successful challenge to the accuracy of
the undisclosed information upon which the Minister's decision
is based could ever be launched.
I am accordingly of the view that the procedures for determi
nation of refugee status claims as set out in the Immigration
Act, 1976 do not accord refugee claimants fundamental justice
in the adjudication of those claims and are thus incompatible
with s. 7 of the Charter. It is therefore necessary to go forward
to the third stage of the inquiry and determine whether the
shortcomings of these procedures in relation to the standards
set out by s. 7 constitute reasonable limits which can be
demonstrably justified in a free and democratic society within
the meaning of s. 1 of the Charter.
In the same case of Singh et al. v. Minister of
Employment and Immigration, Mr. Justice Beetz
spoke for the other equal division of the Supreme
Court bench who invoked the Canadian Bill of
Rights, thereby reviving it from a seemingly mori
bund state. He extracted a lengthy quotation, from
the late Pigeon J. written in Ernewein v. Minister
of Employment and Immigration, [1980] 1 S.C.R.
639 at pages 657 and following. It is a dissenting
opinion, but Mr. Justice Beetz points out that it
"retains all its relevance with respect to the neces
sity of a hearing and it is reinforced by the
Canadian Bill of Rights" [at page 234]. These are
among the passages by Pigeon J. [at page 659]
quoted by Beetz J. in the Singh case [at page 233]:
It is also a well established principle that audi alternam partem
is a rule of natural justice so firmly adopted by the common
law that it applies to all those who fulfil judicial functions and
it is not excluded by inference. See L'Alliance des Professeurs
Catholiques de Montreal v. Labour Relations Board ([1953] 2
S.C.R. 140), per Rinfret C.J. at p. 154:
[TRANSLATION] The rule that no one should be convicted
or deprived of his rights without a hearing, and especially
without even being informed that his rights would be in
question, is a universal rule of equity, and the silence of a
statute should not be relied on as a basis for ignoring it. In
my opinion, there would have to be nothing less than an
express statement by the legislator for this rule to be
superseded: it applies to all courts and to all bodies required
to make a decision that might have the effect of destroying a
right enjoyed by an individual.
In the case at bar it may be said that if the
ADM(Per) did not withdraw from the hearing
room, then, in a metaphysical sense, he barred the
applicant from the hearing room, while hearing
only the version of the applicant's representations
which the DPLS deigned to pass on to the
ADM(Per). Although the NDA and the QR & 0
are silent on how to conduct the adjudication of an
appeal from severity of sentence, the applicant and
his counsel were confronted with this officially
invented unfair process.
In the case of another kind of service tribunal,
that of the Royal Canadian Mounted Police, the
Supreme Court of Canada spoke at length regard
ing paragraph 11(h) of the Charter which is not
under consideration here because the applicant
was convicted by a service tribunal of an offence
against the provisions of the Criminal Code. The
case is that of R. v. Wigglesworth, [1987] 2 S.C.R.
541 in which Madame Justice Wilson writes the
majority opinion. She is reported thus at page 562:
If an individual is to be subject to penal consequences such as
imprisonment—the most severe deprivation of liberty known to
our law—then he or she, in my opinion, should be entitled to
the highest procedural protection known to our law.
Before turning to the application of the law to the facts of
this case, I want to emphasize that nothing in the above
discussion takes away from the possibility that constitutionally
guaranteed procedural protections may be available in a par
ticular case under s. 7 of the Charter even although s. 11 is not
available. The appellant in this case has chosen to base his case
solely on s. 11 of the Charter. In view of this I make no
comment on the applicability of s. 7.
Section 7 of the Charter is invoked in this case by
the applicant and in referring to "the principles of
fundamental justice" it does invoke, as did Wilson
J., "the highest procedural protection known to
our law".
Now, it is true that upon cross-examination on
his affidavit, a remarkable performance, whose
transcript is exhibit 4, Lt.-Gen. James Arthur Fox,
the current ADM(Per) gave his impressions of
military justice, including the procedure in vogue
on severity-of-sentence appeals, thus:
30. Q. And if he appeals the severity of sentence from the
court-martial, he gets advised as to whether he has been
denied or not, that is all, is that not so?
A. That is basically correct, in the form of written
response.
31. Q. Yes, but he doesn't get reasons, does he?
A. That is correct.
32. Q. Does that seem to you—
A. In the written response.
33. Q. Yes. All he gets is that he is told very simply that his
appeal is denied or granted in part or whatever it may
be—
A. Correct
34. Q. —without any reasons?
A. Correct
35. Q. Does that strike you as being somewhat anomalous?
A. I think that the individual will be aware of the
judgments that have been applied through other legal
counsel or assisting officer will advise him, so I think the
individual is aware, so what we are really talking about is
whether the response need be in writing.
. . .
40. Q. I say that the individual who has appealed the severity
of the sentence does not get told what you receive?
A. That is correct.
41. Q. That is correct, you don't deny that?
A. In detail.
42. Q. Just a minute, you say in detail, does he get advised
generally? I put it to you he doesn't get advised at all of
anything that is going into that submission?
A. He has, I want to take some advice here, okay.
43. Q. Well, Mr. Macdonald, you perhaps will want to speak
to the General. I want it understood this is my cross-
examination and I don't want continued interruptions. I
don't want him to be given the answers. He has sworn a
40-page affidavit putting himself forward as an authority
on this system and he should be able to answer the
questions.
MR. MACDONALD: There will be areas that the General
will require some assistance in informing himself, the
details of the system will not be immediately at hand and
that is why he has Lieutenant-Colonel Carter and Cap
tain Partner here.
There may be times when he will require some assistance
which is normal in an examination for discovery. [sic] I
don't see anything objectinable about him stopping from
time to time to get that assistance.
. . .
46. Q. Can you tell me in how many cases, to your knowl
edge, a copy of the submission that goes to you is
provided either to the appellant or to his counsel in order
that he might comment on it?
A. No, I can't tell you. I would expect
47. Q. Would—
A. —go ahead
48. Q. —would you disagree it has never been done?
A. I will not disagree, because I cannot tell you.
49. Q. When you are making the decisions, you receive no
direct input from appellant's counsel or the appellant?
A. I receive the input that is put before me. If there has
been information provided, then that information will be
in there.
50. Q. But that is filtered through your legal staff in the
Directorate of Personnel Legal Service, isn't that correct?
A. That is filtered through staff, that is correct, yes.
51. Q. You don't see it at all, that is, the submission, if there
was one from the appellant or his defence counsel?
A. I have not, so I can't answer the question beyond that.
I would expect if, if there was detailed argument pro
vided, I would expect to see it, because I would expect the
staff to act like that. (Ex. 2, pp. 8 to 13)
• • •
181. Q. You are aware that lawyers look to appellate courts
for guidance in applying various provisions, et cetera, in
court, are you aware of that, I take it?
A. Not really.
182. Q. No. In the submissions you receive, and I appreciate
you have only in your current capacity received two, is it?
A. Mm hmmm.
183. Q. There would ordinarily be reference to precedents
there, would there not?
A. There may be (Ex. 2, p. 37)
• • •
230. Q. No, I am talking now of your role as the authority
considering appeals on severity of sentence and perhaps
we can step back just a little bit. The court-martial
system, of course, is an adversarial system, isn't it?
A. Mm hmmm.
231. Q. Do you consider the appeal system, the severity of
sentence to be part of that ongoing process or adversarial
process?
A. Are we into law here again?
MR. MACDONALD: Yes, we are. If you don't know, say
you don't know. If you feel that it is within your area of
knowledge, you can answer it, but it is a legal question.
WITNESS: I am not sure that in the sense of law what the
answer is, but I think it is fair to answer and say I do not
consider it to be part of the adversarial system myself.
(Ex. 2, p. 48)
• • •
[234] [A] ... I do feel that the judgments applied have inputs
permissible from both sides. In the sense of adversarial in
arguing in court, if that is what you mean, I don't see it
in those terms. I do see other judgments being entered.
235. Q. All right. And under the National Defence Act there
is no appeal from your decision on severity of sentence.
Ins't that so?
A. That is correct. (Ex. 2, pp. 49 & 50)
Lt.-Gen. Fox's credibility in pledging his oath on
the provisions of the forty-page, forty-two para
graph affidavit which he swore is not enhanced in
the following passage:
236. Q. This affidavit, General, was obviously prepared for
you by someone else, wasn't it?
A. There was obviously work done by others, but I have
signed this.
237. Q. Yes. Did you see in the course of your being advised
on that affidavit you swore, did you see an affidavit that
was sworn by General de Chastelain in 1986?
A. No.
238. Q. Were you told that your affidavit was in fact very
similar to General de Chastelain's?
A. No. I was told that the argument, that there is
argumentation that had been drawn from several sources.
(Ex. 2, p. 50)
Regarding the procedure emplaced for severity-
of-sentence appeals Lt.-Gen. Fox continued to give
viva voce testimony, thus:
291. Q. If you are hearing submissions from two sides at a
formal hearing, it is likely, is it not, you are going to be
taking more time than you would just sitting down read-
ing a submission prepared for you by DPLS after vetting
anything that they have?
A. It probably would, and certainly if it was done fre
quently. (Ex. 2, p. 63)
• • •
358. Q. Perhaps I can put it another way. Would you agree it
would be impractical from a military perspective to hold
hearings on appeals on severity of sentence?
A. We would have great difficulty with it in practical
terms, in the sense of time practicality and so on. (Ex. 2,
p. 77)
• • •
403. Q. ... Your senior legal adviser has said there should be
no problem with releasing the [DPLs's] submission, pro
viding there is compliance with the Privacy Act, Access to
Information Act and whatever other law may be applied
here, you agree with that, General?
A. Yes.
404. Q. And I understand that in Captain Partner's experi
ence, and he has been the Director of Personnel Legal
Services since 1985, there have only been two occasions in
which there have been releases to a lawyer dealing with
an appeal on severity of sentence of these submissions
going to you, or at least a synopsis of it, is that correct?
A. Yes.
405. Q. And that the lawyer could be provided with a sum
mary and if he had anything to comment on he could
send that in and then that would be digested and dealt
with in terms of the submission going to you, correct?
A. Correct.
• • •
408. Q. In general you agree that there is no provision under
the National Defence Act or the regulations or orders
that, currently at least, that provide for an appellant or
his counsel to obtain that material, inviting him to or
giving him permission to do so?
A. There is nothing that invites him to nor gives him
permission nor certainly nothing that precludes, that
would give him that idea either. (Ex. 2, pp. 87 & 88)
Another deponent, Capt. (N) William Arthur
Reed was cross-examined on his filed affidavit and
the transcript is exhibit 4. Capt. (N) Reed was
Capt. (N) Partner's immediate predecessor as
DPLS, serving in that role from January 1981 to
summer of 1984. He testified as follows:
283. Q. Now during the time you were in DPLS and dealing
with appeals on severity of sentence, it was not the policy
to send out letters to the appellant or his counsel inviting
submissions, isn't that correct?
A. I'm just trying to take my mind back. I know that I
have discussed appeals as to severity of sentence in, when
I was in the office of the Director of Personnel Legal
Services with civilian counsel who were representing an
accused.
284. Q. They may have phoned to find out what it is all about
kind of thing?
A. I don't know how, but it was initiated.
285. Q. But there was no policy to send out letters, was there?
A. I don't believe there was.
286. Q. No. There is nothing in regulations, orders or the Act
that provides for counsel or the appellant to make sub
missions to ADM/Per?
A. Well, the Act provides that he can, provides for
severity of appeal and the regulation provides for the
form and the form provides for reasons to be advanced.
287. Q. That form though, sir, after all in the block dealing
with appeals on severity of sentence is about two and a
half inches long, isn't it, that is served on the accused,
isn't?
A. That is correct. (Ex. 4, pp. 66 & 67)
. . .
291. Q. But no case comes to mind in which ADM/Per did not
accept your recommendations, isn't that fair to say?
A. Nothing springs to mind, no. (Ex. 4, p. 68)
The procedure is fully explained. It is woefully
deficient. Of course an appellant's solicitor could
always write a letter addressed directly to the
ADM(Per) setting out the appellant's submissions
on appeal against severity of sentence. In a free
and democratic country anyone is free to write a
letter to an official office-holder. However, that
freedom does not impose a correlative obligation
upon the official to read and to consider those
submissions in terms of the appeal. He may, and
the Court concludes upon the affidavits filed and
the answers expressed on the cross-examination,
would most probably simply ignore such submis
sions as being extraneous to the deficient proce
dure which has been invented and applied in sever-
ity-of-sentence appeals.
The appellant/applicant's right to fair proce
dure, to fundamental justice to the benefit of audi
alteram partem are simply denied in this proce
dure, in which he is obliged to make his submis
sions to the decision-maker through the offices and
judgment of the decision-maker's subordinate
assistant official. Honourable as the DPLS of the
day may be, as one would surely expect, at least
most of the time, he or she is distinctly not the
appellant's advocate. In acting as the DPLS does
in such matters, he or she effectively obstructs the
appellant from direct access to the ADM(Per) who
is, in turn, blocked from "hearing" from the appel
lant, although designated to make the ultimate
decision on severity.
There is no fundamental justice inherent in that
process. It violates the applicant's right to funda
mental justice in proceeding where his liberty is at
stake and which result in his sentence of imprison
ment remaining unchanged on appeal. It violates
fundamental justice to require the appellant
(applicant here) to transmit his representations for
mitigation of sentence through the perceptions of
the DPLS who, (if Lt.-Gen. Fox and Capt. (N)
Reed are to be believed in their enthusiasm for all
things military and naval) simply must be bearing
an institutional bias, with all his professional for
mation, dedication and position subordinate to the
ADM(Per). At the very least an appellant ought to
have a copy of the DPLS's submission or memo
randum first, and then a clear opportunity to place
his own or his counsel's submissions, last, directly
before the designated authority, presently the
ADM(Per), without any intermediary interven
tion. These considerations are of especial impor
tance because there is no appeal from the decision
of the ADM(Per) under the present dispensation.
The applicant urged further that he ought to
have had the opportunity to have his submissions
expressed orally at a hearing conducted by the
designated authority. Also, on behalf of the appli
cant it was urged that the whole tenor of Lt.-Gen.
Fox's and Capt. (N) Reed's affidavits and cross-
examinations, exhibits 2 and 4 respectively, (which
the applicant's counsel commended in their entire-
ties for the insights they provide) demonstrate
clearly that an independent adjudicator is constitu
tionally needed for severity-of-sentence appeals. It
is a strong point of principle with the respondents
that a Canadian Forces member is the only sort of
adjudicator suited to the role for severity-of-sent
ence appeals. To have dislodged the ADM(Per) or
other general officer from the the functions of
adjudicator in this case would have required the
applicant to bring action for a declaration of the
constitutional invalidity of sections 233 and 212 of
the NDA, according to the decision of this Court's
Appeal Division in Wilson v. Minister of Justice,
[1985] 1 F.C. 586. Therefore the challenge to the
existence of the very institution of the Minister's
designated military authority in this kind of matter
is obviated in this case.
The question of an oral hearing for severity-of-
sentence appeals is not so easily resolved. Here is
the applicant facing a four-month term of "the
most severe deprivation of liberty known to our
law" as Wilson J. noted in the Wigglesworth deci
sion, above cited [at page 12]. It exacts "the
highest procedural protection known to our law",
which involves an oral or in-person hearing. Such,
also, was the major premise of both of the Singh
case's unanimous divisions of the Supreme Court
of Canada. Each of those divisions however
expressed its own particular minor premise to the
effect that an oral hearing is not always essential,
so long as the applicant can "state his case and
know the case he has to meet" as Madame Justice
Wilson stated in Singh (at page 214). The other
division of the Supreme Court of Canada, for
whom Mr. Justice Beetz wrote their opinion in
Singh, did "not wish to suggest that the principles
of fundamental justice will impose an oral hearing
in all cases". He said that the "most important
factors in determining . .. fundamental justice in a
given case are the nature of the legal rights at
issue and the severity of the consequences to the
individuals concerned" (at page 229). The "severi-
ty" referred to by Beetz J. is to be understood in a
qualitative sense, not a quantitative sense. Admit
tedly, the term of imprisonment imposed here is
relatively short for a fourth offence, although for
the third offence the applicant's rank had been
reduced from major to captain. Nevertheless,
according to the majority judgment in Wiggles-
worth, imprisonment is "the most severe depriva
tion of liberty known to our law" and, in the
present case, this Court is not concerned with the
term of the applicant's imprisonment, but with the
fairness of the appeal process.
The respondents would compare the applicant's
plight under military law with what it might have
been, if he had been convicted and sentenced in a
civilian court. They point to the necessity of
obtaining leave (almost invariably accorded) pur
suant to paragraph 675(1)(b) of the Criminal
Code [R.S.C., 1985, c. C-46] in order to appeal
against the sentence imposed for a conviction on
indictment, if the sentence be not fixed by law.
They point also to the Attorney General's necessi
ty of obtaining leave, pursuant to paragraph
676(1)(d) [as am. by R.S.C., 1985 (1st Supp.),
c. 27, s. 139)] of the Criminal Code, in order to
appeal against the sentence imposed for a convic
tion on indictment, if the sentence be not fixed by
law. The respondents also point to the possibility,
pursuant to section 685 of the Criminal Code,
whereby the provincial court of appeal may sum
marily dismiss a frivolous or vexatious appeal
involving only a question of law, without calling on
anyone to attend the session which is referred to as
a "hearing". In addition the respondents point to
section 687 of the Criminal Code pursuant to
which, if the sentence be not fixed by law, the
Court of Appeal may vary the sentence (by dimin
ishing, or increasing the term) within the limits
prescribed by law, even if the Crown seeks no
increase in the terms of the sentence. Finally, the
respondents mention section 688 of the Criminal
Code whereby it is provided that, in certain cir
cumstances, an appellant who is in custody and
represented by counsel, or an appellant who wishes
to present his case on appeal in writing instead of
orally, is not entitled to be present at the hearing
of his appeal. Basically section 688 sets out a few
exceptions from the right of an appellant in cus
tody to attend. An appellant at large has the
unqualified right, in common with that of the
public at large, to attend the hearing of his or her
appeal.
As against the above-mentioned provisions of
the Criminal Code, the respondents note:
k) Under the provisions of the National Defence Act a convict
ed person has an absolute right of appeal against the severity of
sentence and there is no right of the Crown to cross appeal nor
is there any provison for the sentence to be increased upon the
hearing [sic] of the appeal.
The respondents' counsel spoke on their behalf
most articulately, but after all was said, it remains
difficult to fathom their asserted comparison of the
general criminal law with the military disciplinary
law, especially in light of the respondents' emphat
ic averments that military law is a highly devel
oped, finely-tuned, close-to-perfect integrity
(Lt.-Gen. Fox's affidavit and cross-examination)
in which the precepts of civilian law could be seen
as virtually foreign elements. Perhaps the respond
ents' posture then is meant to convey the notion
that Capt. Duncan, the applicant, is one lucky
officer not to have been involved in the toils of the
civilian law. That may well be so indeed, but it is
irrelevant, for the respondents cannot thereby gloss
over the constitutional deficiencies in the proce
dure someone invented and they adopted. The
possibly worse plight of a civilian accused or appel
lant affords no justification whatever for depriving
military appellants of fundamental justice. Who,
after all, can know whether the applicant in civil
ian life would have been subject to the same
intensity of the stresses of a skillful aeroplane pilot
and superb leader of service personnel, as he has
been in his military career; and if so, how he would
have otherwise coped with such stresses? There
may possibly be less excuse—in a moral sense—for
committing offences in civilian life; but such a
consideration introduces philosophizing of a kind
which has little or no place in this ligitation.
The respondents invoke the provisions of section
1 of the Charter which states that it "guarantees
the rights and freedoms set out in it subject only to
such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic
society" [emphasis not in original text]. The Court
finds that the respondents have not demonstrated
any justifiable limit, prescribed by law, for exclud
ing the applicant's access to fundamental justice,
or fair procedures, by denying him and/or his
counsel direct access to the decision-maker who,
after all, must "hear" if he or she is also to make
such important decisions.
There is no identified emergency, nor any over
whelmingly high order of administrative conve
nience, nor yet any other specie of official, State,
or military exigency which this Court can perceive,
for obliging appellants to filter their submissions
as to severity of sentence through the DPLS in
order to have them placed before the ADM(Per)
for his or her careful, open-minded consideration.
Such consideration (which is not subject to further
appeals) needs to be undertaken after direct
access—audi alteram partem—lest the principles
of fundamental justice be vitiated, in this free and
democratic society. Whatever military discipline
requires, it is clear that it does not require strip
ping members of the Armed Forces of the dignity
of making their own submissions personally or by
counsel, directly to the officer designated to judge
their appeals in mitigation of sentence severity.
Section 1 of the Charter is not applicable to these
circumstances.
Now where do the parties stand? The respond
ents, at least for the time being, have preserved
their much touted institution of a truly military
official to adjudicate severity-of-sentence appeals.
On what is, quite frankly, a razor's edge decision
the Court, haesitante, exercises its discretion
against declaring the written as distinct from oral
process in severity appeals to be constitutionally
unacceptable.
For the purposes of this litigation only, it seems
that an oral hearing was not strictly necessary, if
the applicant's submissions could have been laid
directly before the ADM(Per) after his counsel
had had the opportunity to review finally what the
DPLS had submitted. Such a procedure would be
akin to reply in oral argument. The applicant, even
before he initiated these proceedings has been
spared the ignominy and potential financial detri
ment of dismissal under QR & 0 article
114.08(2), not carried out pursuant to subsection
178(2) [now 206(2)] of the NDA. The respond
ent's counsel confirms that the applicant is now to
be honourably discharged as one for whom no
useful employment is presently available. He still
faces, however, the four-month term of imprison-
ment imposed by the SCM and, by virtue of the
applicant's appeal, he still faces it as the con
sidered disposition of the ADM(Per) through that
unconstitutional process.
Should the Court now merely acknowledge the
applicant's civic spirit in bringing that process to
the Court's attention so that it might be found and
declared to be contrary to section 7 of the Chart
er? Should the Court now merely adjure the
respondents to do better in future? It is clear, as
both counsel agreed, that in so far as the appli
cant's appeal is concerned, the ADM(Per) is func-
tus officio. In fact the present incumbent of that
office is not the incumbent who was in place at the
material time. There is no authority in the legisla
tion to refer the matter for proper adjudication by
the present incumbent who in terms of his office is
functus. But even if there were such authority, it
would not be appropriate to exercise it, in view of
the present incumbent's affidavit and counsel's
vigorous cross-examination of him on it; and noth
ing pejorative or disrespectful is intended by this
observation. The matter of according a remedy is
always discretionary on the Court's part.
One further matter puts the exercise of discre
tion beyond hesitancy. It will be remembered that
Capt. (N) Partner stated in his affidavits that the
applicant's counsel had presented "detailed and
comprehensive arguments why his client's appeal
should be allowed", and that he, Capt. (N) Part
ner, gave them "full consideration" when he trans
mitted his submissions and recommendations to
the ADM(Per). These statements may be seen in
paragraphs 10 and 11, above quoted, from Capt.
(N) Partner's affidavit. Now what did the DPLS
truly transmit to the ADM(Per) in regard to the
applicant's appeal? A true copy of it is exhibit 1 in
these proceedings. Paragraph 9 of exhibit 1 tells
all about those "detailed and comprehensive argu
ments" and "oral representations". It runs as
follows:
9. (P) In his statement of appeal as to the severity of the
sentence (Flag "A"), Capt. Duncan argued that the sentence is
excessive under all circumstances. His lawyer who is represent
ing him on this appeal has not provided further particulars.
[Emphasis not in original text.]
That is all! One must wonder if Capt. (N) Partner
had then, on January 29, 1989, forgotten all about
those "detailed and comprehensive arguments"
and "oral representations" to which he gave "full
consideration"; and then remembered them all
again, but too late for the ADM(Per), when he
came to swear to the truth of his affidavit. Or by
"full consideration" does he mean that he weighed
the arguments and representations and found them
wanting, thereby sparing the ADM(Per) from the
trouble of engaging his mind about them.
If anything confirms the apprehension about
short-circuiting good principles in the name of
various kinds of "efficiency", so that one can leave
it to the unsuperintended to run their own show,
this is it. This failure on Capt. (N) Partner's part
exemplifies a deficient process hopelessly deficient-
ly operated and applied. This failure stiffens one's
resolve to see the principles of fundamental justice
thoroughly and always applied, just as the Charter
exacts, unless some demonstrable justification per
mits their relaxation. Apparently, there still is no
good substitute for audi alteram partem, for oblig
ing the decision-maker also to "hear" personally,
and for making one's own or for presenting one's
counsel's representations directly to the decision-
maker. Clearly, the applicant's counsel would
never have acquiesced in that submission contain
ing that paragraph 9 being transmitted by the
DPLS to the ADM(Per) if counsel had been given
the opportunity to review the DPLS's submission
beforehand. These considerations predicate the
exercise of the Court's discretion in the applicant's
favour.
Because of the incurable and basic constitution
al deficiencies in process invented for appeals
against severity of sentence (no opportunity for the
appellant or counsel to review the DPLS's memo
randum of submissions to the ADM(Per) before
the latter makes a decision about severity; and no
opportunity for the appellant or counsel to place
his, her or their own representations directly
before that designated decision-maker) the Court
will exercise its powers pursuant to subsection
24(1) of the Charter. Capt. Duncan whose rights
or freedoms, as guaranteed by the Charter, have
been infringed or denied shall obtain such remedy
as the Court considers appropriate in the circum
stances, what he sought, which, for want of a more
appropriate remedy, is prohibition.
It would not be appropriate, by default, to leave
the applicant to be imprisoned after he has demon
strated so clearly the deficiencies of the appeal
process which denied him a proper and fair adjudi
cation of his appeal. Nor is it appropriate to signal
to the respondents that, despite their hopelessly
deficient procedure for dealing with the applicant's
appeal (among others), it emerges that the only
heavy, hard consequence of their unfair procedure
on appeal is to continue to visit imprisonment on
the applicant whose right to fundamental justice
they violated. The path of justice here seems to
lead to the circumvention of the applicant's impris
onment. To some, that would be an injustice in
itself, but it would balance off the injustice of the
unconstitutional procedure which he was obliged
by "the system" to endure. Thus, the path of
justice leads to its destination by balancing and
compensating for those injustices in such a manner
as to avoid irremedial damage to the good princi
ples residing in the law and in the Constitution.
The edifice of military justice will not crumble if,
in avoiding the imprisonment of the applicant, the
imperatives of our country's Constitution be
upheld in the result. The reverse would be quite
inapppropriate because it is the Constitution which
is the supreme law of Canada, not the NDA, not
the QR & 0, and not the invented unconstitution
al procedure which was adopted for appeals
against severity of sentences.
The respondents shall be, and are, prohibited
from imprisoning the applicant in any service
detention barracks or other place under their con
trol in relation to the sentence imposed upon him
at the conclusion of his Standing Court Martial on
April 28, 1988, confirmed by the ADM(Per).
Such being the result, the interim injunction
order pronounced by the Honourable Mr. Justice
Joyal herein on October 13, 1989, [(1989), 52
C.C.C. (3d) 86 (F.C.T.D.)], with any continuation
thereof will be and is simultaneously vacated and
dissolved.
The respondents shall pay to the applicant's
solicitors, his party and party costs of and inciden
tal to these proceedings including previously
ordered costs in the cause, forthwith after taxation
thereof, unless the parties otherwise freely agree in
avoidance of taxation of costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.