Stay in Lt-Gen Cadieu's case

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subs 486.4(1) of the Criminal Code, directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way.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.

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[1] Marieke Walsh, “Sexual assault charges stayed against former top general in Canadian Forces, judge blames military police for delays”, The Globe and Mail, October 11, 2023, <https://www.theglobeandmail.com/canada/article-sexual-assault-charges-stayed-against-former-top-general-in-canadian/>.

[2] On 1 September 1999, an amendment of section 70 of the National Defence Act (NDA) came into force. It gave the Code of Service Discipline the jurisdiction to try allegations of sexual assault allegedly committed in Canada, under section 271 of the Criminal Code.

[3] His Majesty the King v Trevor Cadieu & Cory Gelowitz, Ontario Court of Justice, October 10, 2023 (Justice L.B. O’Brien) [Cadieu & Gelowitz].

[4] Canadian Charter of Rights and Freedoms, s 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 a.

[5] Id., para. 1.

[6] Id., para. 6.

[7] 2016 SCC 27 (CanLII), [2016] 1 SCR 631, <https://canlii.ca/t/gsds3>, retrieved on 2023-10-14 [Jordan].

[8] 2017 SCC 31 (CanLII), [2017] 1 SCR 659, <https://canlii.ca/t/h4bfk>, retrieved on 2023-10-14.

[9] For cases tried in the superior court, the applicable presumptive ceiling is 30 months (see Jordan, supra, note 6, para. 46).

[10] Cadieu & Gelowitz, supra, note 3, para. 8.

[11] The “total delay” extends from the laying of the charge to the actual or anticipated end of the trial (see Jordan, supra, note 6, para. 47.)

[12] The “net delay” is calculated by subtracting defence delay from the “total delay” (see Jordan, supra, note 6, para. 60).

[13] Cadieu & Gelowitz, supra, note 3, para. 9.

[14] 2022 ONCA 449 (CanLII), <https://canlii.ca/t/jpqcr>, retrieved on 2023-10-14.

[15] Cadieu & Gelowitz, supra, note 3, para. 10.

[16] Id., paras. 12 to 33.

[17] Id., para. 32.