A court martial stayed for delay - a convoluted path

Last Wednesday, the Court Martial Appeal Court of Canada (CMAC) upheld a stay of prosecution for delay.  While this judgment is unlikely to have a marked impact on jurisprudence in Canadian military law, it may impact the manner in which the Canadian Military Prosecution Service (CMPS) governs itself. 

In R v Jacques, 2026 CMAC 3, Chief Justice Mary Gleason (on behalf of a unanimous bench) dismissed both the appeal by the Director of Military Prosecutions (DMP) - on behalf of the Minister - and the cross-appeal by Major Jacques (retired).

And it is illustrative that Major Jacques was still serving when the process began, but was retired by the time that the appeal was heard.

This matter has a relatively long history.  It is, perhaps, not as long as some well-aged grievances in the Canadian Forces grievance process, but the judgment of the CMAC marks the (likely) end of a process that has taken nearly 7 years.
 
This judgment concerns the application of the framework established by the Supreme Court of Canada (SCC) under R v Jordan, 2016 SCC 27 (the "Jordan framework") as applied at court martial.  This framework is used to assist in determining if an accused has been denied trial within a reasonable amount of time, thereby contravening the accused right under s 11(b) of the Canadian Charter of Rights and Freedoms (Charter).


Under the Jordan framework, the SCC established an 18-month presumptive ceiling for post-charge delay.  The total delay from the date that charges are laid to the commencement of the trial on the merits of the charges (or the anticipated start of trial) is calculated.  Any delay attributable to the defence is deducted, leaving the delay attributable to institutional process and the prosecution.  If the delay exceeds that threshold established under Jordan, the prosecution may present argument why additional delay, arising from exceptional circumstances, should be deducted.  Exceptional circumstances are those that lie outside the Crown’s control in that: (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied.  One recent recent example of such exceptional circumstances was the impact of the initial months of the COVID-19 pandemic in early 2020.

Although the Jordan framework attempts to establish an objective means of calculating delay, there will, inevitably, be a degree of subjective interpretation by a trial judge regarding the attribution of delay and, where relevant, the examination of "exceptional circumstances".  In Jordan, the SCC established that it is obviously impossible to identify in advance all circumstances that may qualify as exceptional for the purposes of adjudicating a s 11(b) application. Ultimately, the determination of whether circumstances are exceptional will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

                    If the exceptional circumstance relates to a discrete event (such as an illness or unexpected event at trial), the delay reasonably attributable to that event is subtracted from the total delay. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable and no further analysis is required.    An exceptional circumstance is the only basis upon which the Crown or prosecution can discharge its burden to justify a delay that exceeds the Jordan ceiling. The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay. Most significantly, the absence of prejudice can in no circumstances be used to justify delays after the presumptive ceiling is breached. Once so much time has elapsed, only circumstances that are genuinely outside the Crown’s control and ability to remedy may furnish a sufficient excuse for the prolonged delay.

[NB: The history of this proceeding is distinct from another court martial, involving the same accused, and related facts/allegations, but which culminated in a guilty plea and joint submission regarding two charges: one count of an act of a fraudulent nature not particularly specified in sections 73 to 128 of the National Defence Act (NDA), contrary to para 117(f) of the NDA, and one count of absence without leave, contrary to s 90 of the NDA.  The sentencing for that matter can be found here: R v Major Jacques, 2019 CM 3010.]

Major Jacques was first charged in August 2019.  She was accused of: fraud (contrary to s 380 of the Criminal Code and prosecuted under s 130 of the NDA), two counts of willfully making a false statement in an official document contrary to paragraph 125(a) of the NDA, one count of conduct prejudicial to good order and discipline contrary to section 129 of the NDA, and two counts of fraudulent act contrary to paragraph 117(f) of the NDA.

Early in the process, approximately 15 months after Major Jacques was charged, the accused brought an application seeking a stay of prosecution based upon argument that the accused would be deprived of a right to trial by an independent and impartial tribunal, in contravention of s 11(d) of the Charter.  This application was based upon similar applications brought by numerous accused in 2020, and which arose from organizational changes to the governance of the Office of the Chief Military Judge.  These applications were later considered by the SCC in R v Edwards, 2024 SCC 15. 

Major Jacques' application was unsuccessful: R c Major Jacques, 2020 CM 3010 (in French)

Early delay in this proceeding was attributed, in part, to a change of counsel.  Major Jacques was initially represented by a lawyer from Defence Counsel Services (including in the initial application for a stay of prosecution under s 11(d) of the Charter).  The military lawyer was eventually removed from that role by Director of Defence Counsel Services (DDCS) after DDCS directed the lawyer to refrain from maintaining a constitutional challenge that the respondent had raised and wished to pursue. The respondent then retained a civilian lawyer, which led to a 189-day adjournment (from 6 December 2021 to 13 June 2022).  This delay was attributed to the defence, and was not, therefore, counted under the Jordan framework.

The accused's civilian lawyer brought several applications before the court martial, including an application seeking recusal of the presiding military judge, and an application for a writ of prohibition before the Federal Court. Both were unsuccessful:

R c Major Jacques, 2023 CM 3012 (in French)

Jacques v Canada (Attorney General), 2024 FC 26

However, the principal cause for delay upon which the stay of prosecutions was based, was the unavailability of the prosecutor when the time came to schedule the trial.  A total of 217 days of delay between 29 September 2023 and 3 May 2024, were attributed to the prosecution, which, when added to prior institutional and prosecutorial delay, brought the total delay above the 18-month Jordan threshold that has been applied consistently at court martial.

Chief Justice Gleason's judgment is succinct, and worth a review.  A key factor was the limited availability of a prosecutor who could proceed in French. However, another factor was a request by the defence seeking to examine the Court Martial Administrator (CMA) in support of one of their applications under the Charter.  This disrupted a scheduled trial date, and one could reasonably argue that some of the resulting delay ought to have been attributed to the defence.

The accused had brought several pre-trial applications challenging jurisdiction under sections 7, 11(d), and 11(f) under the Charter.  The accused was granted permission to re-open her case in order to call the CMA as a witness in order to present evidence in support of the Charter applications.  The CMAC observed that the examination took longer than expected.

On 3 August 2023, during a break in the examination of the CMA, the military judge raised with counsel for both the prosecution and the accused the possibility of an adjournment of the scheduled trial dates.  The trial had been scheduled to run from 11 to 29 September 2023, with the possibility of a shorter two-week trial. The military judge suggested that the original trial dates could be used to complete the evidence on the Charter challenges and to argue any other pre-trial applications. The military judge suggested several dates before the end of the 18-month Jordan ceiling (forecasted as 30 January 2024). Neither counsel objected to postponing the trial and using the September dates to complete all the pre-trial matters.

The first of the dates canvassed by the military judge were three weeks commencing on 6 November 2023. Counsel for the accused was available on all but two of the suggested dates, but counsel for the prosecution was not available on any of them as he was scheduled to appear before another court martial in November. Counsel for the prosecution advised the military judge that he was unavailable for the balance of November, in December 2023, and from January to March 2024, when he was scheduled to appear before other courts martial. In sum, counsel for the prosecution advised the military judge that he was not available until April of 2024.

When the military judge inquired if counsel for the prosecution could be replaced by another prosecutor in any of these other files, counsel for the prosecution advised that the CMPS was then short of lawyers capable of conducting proceedings in French so it might be difficult to find a replacement for him. Counsel for the accused suggested that the 'second chair' for the prosecution could conduct the trial, but counsel for the prosecution advised he could not. The military judge then canvassed with counsel for the parties their availability for other dates, including ones for a trial commencing in January 2024. Counsel for the accused was available, but counsel for the prosecution was not.

It merits mentioning that the CMPS typically has a total of 15 to 18 regular force military lawyers in various positions.  But only half are 'prosecutors' who have regular carriage of matters before courts martial.  (This does not include the experienced reserve force military prosecutors, who are frequently civilian prosecutors in their 'day jobs').  The other military lawyers in CMPS occupy supervisory, policy, or advisory roles.

The DMP Annual Report for the period between 1 April 2023 and 31 March 2024 indicated that for "... a significant portion of the year, the CMPS operated with seven Military Prosecutors due to two prosecutors being on extended leave."  During this period, the establishment for the CMPS included: DMP (a colonel), Assistant DMP (ADMP), a lieutenant-colonel, the CFNIS legal advisor, Deputy DMP Operations (DDMP Ops), Assistant DDMP Ops, DDMP Strat, Appellate Counsel, DDMP SMART (the sexual misconduct response team prosecutor), and two teams of military prosecutors numbering nine prosecutors (although two of these were on extended leave).  The CMPS also had nine (9) experienced reserve force prosecutors.

The difficulty in the matter, apparently, was the ability to assign a prosecutor capable of proceeding in French at the relevant time.  Although the court martial had been scheduled for September 2023, the assigned prosecutor (a francophone) was occupied for the 5 subsequent months with other courts martial. It is likely unsurprising that the prosecutor's schedule was quite busy in the following months, as courts martial tend to be scheduled a few months in advance.  Last-minute changes can be difficult to accommodate.

And we would do well to remember that, by 2023/2024, the number of courts martial per year had been significantly reduced as many allegations relating to sexual offences were being redirected to the civilian criminal justice system.  According to the JAG Annual Report for 2023/2024, a total of 46 courts martial were concluded during the reporting year, up from 41 conducted in 2022/2023.  In the five years leading up to 2020, there were between 47 and 62 courts martial conducted each year. 

After canvassing trial dates with counsel, the military judge adjourned the proceedings for lunch and to permit the military prosecutor to examine his availability. During the adjournment, counsel for the prosecution sent an email to the office of the CMA to advise that he could not be replaced and was unavailable on the dates discussed. When the hearing resumed, counsel for the accused advised that he had consulted with his client, and that she was likewise unavailable for the dates commencing in January 2024 because she was scheduled to give birth in February 2024. The military judge accordingly determined that the trial should be adjourned to April 15, 2024, which led to an anticipated end date of May 3, 2024. Thereafter, the office of the CMA sent a new convocation order for a trial commencing on April 15, 2024.

The accused's application for a stay of prosecution was predicated upon these dates.  The military judge attributed the delay to the prosecution, and, consequently, ordered a stay of prosecution.

Chief Justice Gleason's judgment was clear an unambiguous in upholding the trial judge's analysis under Jordan.  That was not surprising.  However, I would venture an observation that, when defence counsel appear before civil courts of criminal jurisdiction, trial judges can be much more exigeant with defence counsel and are much more willing to attribute delay to the accused in circumstances where Charter applications by the accused trigger further delay.  In this case, the military judge certainly assigned delay up to 29 September 2023, caused by the accused's applications, to the accused.  But the "longer than expected" examination of the CMA adversely affected dates that had already been selected for trial. 

It appears that this outcome may have been driven by a couple of factors.  First, based upon the CMAC judgment, it appears that the military prosecutor might have missed an opportunity to object to select conclusions drawn by the military judge at the material time.  Granted, it is 'easy' to 'Monday morning quarterback' circumstances that are very fluid at the time.  And the CMAC judgment may not capture all relevant nuances. However, the CMAC expressly note that the military prosecutor did not object to the military judge's suggestion to use the scheduled trial dates to hear the accused' Charter Application.

Second, it appears that the military prosecutor did not argue that some of the delay after 29 September 2023 was attributable to "extraordinary circumstances".  At para 26 of her judgment, Chief Justice Gleason states:

I turn finally to the argument that exceeding the 18-month ceiling was due to extraordinary circumstances. This issue was not canvassed by the Military Judge because it was not raised by the prosecution before him. An appellate court possesses discretion to allow a new issue to be raised on appeal, but such discretion should not be “exercised routinely or lightly”: Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3 at para. 22. As this argument could readily have been raised by the prosecution before the Military Judge, I am far from certain that this Court should allow the prosecution to raise it on appeal.

In light of what transpired, and at the risk of appearing to act as a 'Monday morning quarterback', one might offer the following observations:

• The military prosecutor ought to have objected to the change in the trial dates originally scheduled for September 2023 or, at the very least, should have expressly stated the position that the change of dates should be attributable to the actions of the defence, particularly in light of the timing of this change.
  
• The military prosecutor - the CMPS generally, and the senior decision-makers within CMPS - ought to have ensured that a French-speaking prosecutor with the necessary skill/seniority should have been made available.
• The military prosecutor ought to have made it expressly clear, at the outset, that the CMPS took the position that the circumstances arising in August and September 2023 constituted "exceptional circumstances".

While this judgment does not materially evolve the jurisprudence regarding the Jordan framework at court martial (at least, not in a significant manner), it very likely will influence policy and management decisions within the CMPS.