Canada: A Civilian Judge Orders a Stay for Unreasonable Delay in a
Former CAF General’s Case
Warning: The judicial decision
in this matter is subject to a non-publication and non-broadcast order under subs
486.4(1) of the Criminal Code, directing that any information that could
identify the victim or a witness shall not be published in any document or
broadcast or transmitted in any way.
Marieke Walsh, a senior political reporter, explains in a recent article that Justice Larry O’Brien of the Ontario
Court of Justice, a provincial court, stayed a charge of sexual assault against
retired lieutenant-general Trevor Cadieu and a co-accused person in Kingston,
Ontario.[1]
The reason for proceeding
before a civil court
At the outset, it is important to clarify the jurisdiction of the civil
courts in this case. This laying of the charges before a civil court of
criminal jurisdiction did not result from the application of former Justice
Arbour's recommendation that all cases of criminal offences of a sexual nature that
allegedly occurred in the CAF be referred to the civil courts. Rather, it stems
from the fact that the allegations concern incidents that took place in Canada,
at a time when military justice had no jurisdiction over such offences.[2] In addition, at the time
of the alleged offences, the jurisdiction of military justice was subject to a
three-year limitation period.
The context of the application
for unreasonable delay
In his 33-paragraph written decision[3], Justice O’Brien first
gives an overview of the context surrounding the application made by both
accused persons, “asserting that their right to be tried within a reasonable
time, as enshrined in s. 11(b) of the Canadian Charter of Rights and
Freedoms (Charter)[4], has been infringed”.[5] Both individuals were
charged in June 2022 with sexual assaults that allegedly took place in 1994
and/or 1995. The complaint was first submitted to the Canadian Forces National
Investigative Service (CFNIS) on September 4, 2021. The complainant gave two
additional statements to the CFNIS concerning LGen (ret’d) Cadieu, on October
19, 2021, and March 30, 2022[6].
To assist the Court in assessing delay from the date charges were laid
in June 2022, both applicants and the Crown provided Justice O’Brien with written
summaries of their timelines. These were included as appendices to Justice
O’Brien’s decision. In accordance with the Supreme Court of Canada's judgment in
R v Jordan[7] and R v Cody[8], the period beyond which
the right to be tried within a reasonable time may be presumed to have been
violated is eighteen (18) months after the charges were laid for cases tried in
provincial court.[9]
In the present case, the Crown “…
[did] not take the position that the nature of the disclosure or the allegation
makes it a complex case as described by the Supreme Court”.[10]
Additionally, according to the Crown, the delays prior to the setting of dates
were not the result of exceptional circumstances. However, the Crown argued
that the Defence was responsible for 87 days of delay. If that period of delay
were subtracted from the “total delay”[11],
it would put the “net delay”[12]
slightly below the presumptive ceiling for trials in provincial courts.[13]
The judge’s analysis
Justice O’Brien applied the
“calculation recipe” from R v Zahor[14],
guidance provided by the Ontario Court of Appeal, which laid out the steps in
evaluating an 11 (b) application under the Jordan
framework.[15]
Reviewing each step of the proceedings[16],
the judge was particularly concerned by the fact that “someone” took 9 months
before providing defence counsel with the complainant’s first statement. The
judge wrote:
That someone is not defence
counsel who each, orally and in writing, early and repeatedly requested the
complainant’s statements to little if any avail. It is not enough for the
military to hand off “the file” to the [civilian] crown office in July [2022]
without providing essential disclosure. Over 30 years ago the Supreme Court of
Canada in R v Stinchcombe [1991] 3
SCR 326, at p. 337-342 noted the crown must provide initial disclosure prior to
the accused taking crucial steps which affect his or her rights in a
fundamental way, such as election and plea. The Court accepted that initial
disclosure must include a copy of any statement of a potential witness as well
as the ability to inspect the electronic recording of any statement of a
prospective witness[17].
Reaffirming the
old maxim stated in Jordan that
“justice delayed is justice denied; an unreasonable delay denies justice to the
accused, victims and their families, and the public as a whole”, Justice
O’Brien allowed the application and stayed the charges against both individuals
pursuant to section 24(1) of the Charter.
The Crown
has 30 days from the date of the Justice O’Brien’s decision to file an appeal.
Aftermath?
A military
justice commentator suggests
there be an inquiry - presumably before the Military Police
Complaints Commission of Canada – to look into how the military police are
conducting these types of investigations and supporting subsequent prosecutions.
