R v Kohlsmith, 2024 CMAC 8 and R v Meeks, 2024 CMAC 9

 Trial Within a Reasonable Time and Characterization of Delay

New Evidence on Appeal, Horizontal Stare Decisis at CMAC, and Fitness of Detention for Administratively Released Service Members

As indicated by my friend and colleague LCol Rory Fowler (ret’d) earlier in this blog, the Court Martial Appeal Court of Canada (CMAC) has been active recently. Three decisions were rendered. My colleague summarized and commented upon the judgment pertaining to Canadian military justice’s jurisdiction over young persons.[1] The present text summarizes and comments on two others: R v Kohlsmith[2], which pertains on the right to be tried within a reasonable time, and R v Meeks[3], that deals with introduction of new evidence on appeal, horizontal stare decisis, and whether detention is a fit sentence for a former service member.

Kohlsmith

Sergeant Kohlsmith was charged on April 2, 2020 with sexual assault and, later, applied twice for a stay of proceedings, alleging a violation of his right to be tried within a reasonable time under paragraph 11(b) of the Canadian Charter of Rights and Freedoms (Charter).[4] The underlying judgment for the two applications regarding delay is not presently available on a public database.

The first application was dismissed by the military judge, who found that the defence failed to demonstrate a sustained effort to expedite the proceedings.[5] The CMAC upheld this decision, finding no palpable and overriding error in the military judge's conclusion.[6]

The second application was also dismissed, despite the delay exceeding the presumptive ceiling of 18 months (see below: “Presumptive ceiling in characterizing delay”).[7] The military judge found that the delay was due to exceptional circumstances and that the Crown had acted reasonably to mitigate the delay. The CMAC again upheld the decision, finding no reviewable error in the military judge's conclusions.[8]

The CMAC dismissed Sergeant Kohlsmith's appeal, finding that the military judge made no reviewable error in either of his decisions regarding paragraph 11(b) of the Charter.[9]

Presumptive ceiling in characterizing delay: The Supreme Court of Canada's decision in R v Jordan[10] guides the determination of whether paragraph 11(b) of the Charter, pertaining on the right to be trial within a reasonable time, has been infringed. The decision sets a presumptive ceiling of 18 months for trial delay, beyond which delay is considered unreasonable. To assess this, the net delay is calculated by subtracting defence delay[11] from the total delay. If the net delay exceeds the ceiling, the Crown must establish exceptional circumstances[12] to justify the delay. If the Crown fails, a stay of proceedings may follow but is rare and limited to clear cases.[13]

Meeks

Sergeant Meeks was found guilty of an assault causing bodily harm against another service member, Private Meadows. The offence occurred in 2019 in Germany where their unit at that time was participating in an international exercise. One evening, the two service members went to town with others for dinner and drinks. At some point, there was a communications lockdown due to a tragic incident that occurred in another European country. Not knowing all the precise details, Sgt Meeks heard information suggesting that a close friend could be involved. Due to the seriousness of the situation, service members began leaving the nightclub. When waiting outside for taxis, Pte Melvin (as he then was) returned to the nightclub to retrieve his cigarettes. Upon Pte Melvin’s return, an argument broke with Sgt Meeks involving pushing, and shoving. To de-escalate the situation, Pte Berthe placed himself between the two individuals but was pushed to the side by Sgt Meeks. Then Pte Meadows intervened. During his intervention he was punched by Sgt Meeks, fell to the ground and kicked in the face by him. Pte Meadows was severely injured.

Sgt Meeks offered a defence of “not criminally responsible”. The military judge did not accept the defence.[14] Sgt Meeks was found guilty of an assault causing bodily harm and sentenced to detention for a period of thirty days[15]. Giving her reasons for sentencing, the military judge was of the view that the objectives that must be given the highest priority were general deterrence and denunciation[16]. She recognized that “Sgt Meeks has gone above and beyond in his efforts to rehabilitate himself”[17] and had transformed his life.[18] Nevertheless, the military judge believed the severity of Pte Meadows’ injury warranted a sentence with a form of punitive consequence.[19] In Canadian military law, both imprisonment and detention are punitive in nature. The military judge believed detention, aiming to be rehabilitative, primarily to retain individuals within the CAF, was more appropriate than imprisonment as a just and suitable sentence.[20] The military judge refused to suspend the thirty (30) days of detention, as it would make the punishment “excessively lenient”.[21] In her concluding comments, the military judge offered inspired words of wisdom and empathy towards Pte Meadows, Sgt Meeks and his wife who stood by his side during the proceedings.[22]

On appeal Sgt Meeks initially challenged both his conviction and the severity of the sentence. However, he later abandoned the appeal on conviction in light of R v Edwards.[23] Relying on R v Tupper[24], Sgt Meeks submitted that, as he was administratively released from the CAF, detention was inoperative. He sought to introduce new evidence in support of his argument, as well as a medical report.[25]

Interestingly, the prosecution did not oppose the admission of new evidence as to the date and reason of Sgt Meeks’ release, nor did it oppose the appeal being allowed and the detention being suspended in the circumstances. However, it opposed the admission of the medical report and asked the CMAC to overturn Tupper.[26] A principal ground for this objection was that the medical report was appended to an affidavit of Sgt Meeks, and not the medical officer who completed the report. The prosecution argued that it was hearsay.

For the CMAC, three issues were at play: “i) whether to admit the fresh evidence; ii) whether the administrative release of Sgt Meeks rendered the sentence of detention inoperative; and iii) whether the sentence of detention should be suspended.”[27]

On the admission of fresh evidence pertaining to Sgt Meeks’ administrative release, to which the prosecution consented, the Court concluded that it was appropriate to accept evidence of the release and the reasons for the release. However, the Court found it unnecessary to admit the medical report as it did not affect the outcome of the appeal.[28]

On the impact of an administrative release on sentencing, Sgt Meeks submitted that the CMAC in Tupper ruled that after a service member is released from the CAF, the punishment of detention is not a fit sentence anymore. The prosecution asked the CMAC to revisit its decision in Tupper.[29] The majority in that case decided that once released, Pte Tupper could no more be sentenced to detention.[30]

When an appeal court is asked to consider overturning a previous decision, it is preferrable that a five-justice division of the Court should consider the issue(s). However, the challenge for the CMAC is that the National Defence Act (NDA) limits the Court to a three-judge panels in all circumstances.[31] Therefore, the CMAC has to follow the principle of comity or horizontal stare decisis subject to the narrow exceptions described below.[32]

On that point, the prosecution argued that CMAC decision in Tupper was per incuriam. The standard is high, and the test expressed in the Supreme Court of Canada’s decision in R v Kirkpatrick states:

“To overturn a precedent on this ground, a litigant must show that the Court failed to consider a binding authority or relevant statute and that this failure affected the judgment.”[33]

Reviewing its decision in Tupper[34], the CMAC concluded that, while the majority said that “the administrative release made the punishment of dismissal and detention inoperative”, it also stated that “administrative release ‘may very well circumvent a given sentence’ when it becomes incompatible with administrative release.”[35] In a subsequent case, the majority of the CMAC held that its decision in Tupper “reflects the fact that the sentence of detention no longer served a military objective once the offender was released” from the CAF.[36] But the sentence was ultimately restored by the SCC, for the reasons of the dissenting judge.

Writing for the CMAC in Meeks, Justice Bennett concluded that the decision in Tupper:

“was not about limiting the jurisdiction of the military justice system or overturning a valid sentencing order of the court by operation of an administrative decision, but a question of whether, once Pte. Tupper was released and had recommenced his civilian life, the sentence of detention was a fit sentence.”[37]

Justice Bennett stated that the NDA provisions still apply to individuals discharged from the military for misconduct that occurred during their service. In her view, Tupper only means that an appellate court may consider administrative release when considering the fitness of the sentence.[38] Although she believed the initial sentence was a fit one, Justice Bennett decided to suspend the period of detention, “in light of the new evidence, the position of the prosecution, and the significant change in circumstances of Sgt. Meeks”.[39] In addition, she placed Sgt Meeks on various conditions for 1 year.[40]

Principle of comity or horizontal stare decisis and its exceptions. Comity, or “horizontal stare decisis”, is a legal principle where a court follows its own prior decisions, as well as those of other courts at the same level of jurisdiction, to ensure consistency and predictability in the application of the law[41]. There are three narrow exceptions to depart from that rule: “to resolve conflicting decisions of the same court; to correct inconsistency with a decision of [an higher court]; or where the prior decision was given per incuriam [literally “through lack of care”] or in disregard of binding legal or statutory authority”.[42]

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[1] Rory Fowler, “R v J.L., 2024 CMAC 10 - Young Persons & the Code of Service Discipline” (13 December 2024), online: <https://globalmjreform.blogspot.com/2024/12/r-v-jl-2024-cmac-10-young-persons-code.html>.

[2] R v Kohlsmith, 2024 CMAC 8 (CanLII), <https://canlii.ca/t/k84wj>, retrieved on 2024-12-11 [Kohlsmith].

[3] R v Meeks, 2024 CMAC 9 (CanLII), <https://canlii.ca/t/k82gz>, retrieved on 2024-12-14 [Meeks].

[4] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 11b):

11 Any person charged with an offence has the right

[…]

(b) to be tried within a reasonable time;

[5] Kohlsmith, supra note 2, at para 7.

[6] Ibid, at para 8.

[7] Ibid, at para 9.

[8] Ibid, at paras 10-12.

[9] Ibid, at para 15.

[10] R v Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631, <https://canlii.ca/t/gsds3>, retrieved on 2024-12-14 [Jordan].

[11] Ibid, at paras 60-66. « Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence’s conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay. (para 66).

[12] Ibid, at paras 69-81. Exceptional circumstances are those outside the Crown's control and unavoidable. These circumstances can be discrete events, such as medical emergencies or unexpected trial developments, or result from the complexity of the case, including voluminous disclosure, multiple charges, or novel legal issues.

[13] Ibid, at paras 47-48.

[14] Meeks JK (Sergeant), R v, 2023 CM 2013 (CanLII), <https://canlii.ca/t/k09qd>, retrieved on 2024-12-15.

[15] Meeks JK (Sergeant), R v, 2023 CM 2016 (CanLII) (Reasons for sentencing), <https://canlii.ca/t/k14qh>, retrieved on 2024-12-15.

[16] Ibid, at para 38.

[17] Ibid, at para 79.

[18] Ibid, at para 80.

[19] Ibid, at para 81.

[20] Ibid, at paras 82-83.

[21] Ibid, at para 95.

[22] Ibid, at paras 97-108.

[23] R v Edwards, 2024 SCC 15 (CanLII), <https://canlii.ca/t/k48dm>, retrieved on 2024-12-15.

[24] R v Tupper, 2009 CMAC 5 (CanLII), 7 CMAR 357, <https://canlii.ca/t/ggpwf>, retrieved on 2024-12-15 [Tupper].

[25] Meeks, supra note 3, at paras 1-2.

[26] Ibid, at paras 3-4.

[27] Ibid, at para 23.

[28] Ibid, at para 24.

[29] Ibid, at para 25.

[30] Tupper, supra note 24, at paras 64-67.

[31] National Defence Act, RSC 1985, c N-5, s 235(2).

[32] Meeks, supra note 3, at para 28.

[33] R v Kirkpatrick, 2022 SCC 33 (CanLII), at para 25, <https://canlii.ca/t/jr3vx>, retrieved on 2024-12-16

[34] Meeks, supra note 3, at paras 31-35.

[35] Ibid, at para 36.

[36] R v St-Onge, 2010 CMAC 7 (CanLII), 7 CMAR 505, at para 60, <https://canlii.ca/t/ggpt3>, retrieved on 2024-12-16.

[37] Meeks, supra note 3, at para 38.

[38] Ibid, at par 41.

[39] Ibid, at para 44.

[40] Ibid, at para 47.

[41] R v Sullivan, 2022 SCC 19 (CanLII), [2022] 1 SCR 460, at paras 64-66, <https://canlii.ca/t/jp64b>, retrieved on 2024-12-15.

[42] R v Déry, 2017 CMAC 2 (CanLII), 8 CMAR 51, at para 89, <https://canlii.ca/t/h436q>, retrieved on 2024-12-16.