T-3286-79
Private Donald Allen Esaryk (Applicant)
v.
Lieutenant-Colonel M. A. Bisai (Respondent)
Trial Division, Mahoney J.—Edmonton, Septem-
ber 11; Ottawa, September 14, 1979.
Prerogative writs — Prohibition — Practice — Court mar
tial — Commanding officer's synopsis contained facts pertain
ing to other alleged facts originally sought to be included in
the charge as well as to the o, a to which respondent limited
the charge — Situation analogous to that of an accused
committed to trial by a magistrate who considered evidence he
ought not to have admitted — Respondent's jurisdiction not
ousted — Application dismissed — Queen's Regulations and
Orders for the Canadian Forces, c. 109, art. 109.02.
APPLICATION.
COUNSEL:
P. B. Gunn for applicant.
P. Kremer for respondent.
SOLICITORS:
Gunn, Hardy & Co., Edmonton, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The respondent is President of a
Standing Court Martial trying the applicant on a
number of drug related charges. He has adjourned
the Court Martial to permit this application to be
brought. The application arises in the following
circumstances:
Particulars of one of the charges read:
In that he between the 11th day of August 1978 and the 25th
day of November 1978, in the vicinity of Canadian Forces Base
Cold Lake, did unlawfully sell a quantity of substance held out
by him to be Cannabis sativa in the form of Cannabis
(marihuana) to 249 134 727 Private KRUIVITSKY, J. G.
As evidence was called in respect of that charge it
became apparent that more than one offence was
intended to be included in the single charge. The
applicant's counsel objected and the respondent
upheld the objection. The hearing proceeded and
the evidence of the prosecution relating to that
charge was completed. During the luncheon recess,
article 109.02 of the Queen's Regulations and
Orders for the Canadian Forces, c. 109, came to
the applicant's counsel's attention.
The general scheme of the QR &O is that when
a commanding officer determines not to deal with
a disciplinary matter himself, he refers it to a
higher authority who has the power to try the
matter summarily, dismiss the charge or convene a
Court Martial to try it. In making such a refer
ence, the commanding officer is required to submit
a synopsis. The material provision of article 109.02
is:
109.02 ...
(2) A synopsis shall:
(b) not include any reference, direct or indirect, to
(ii) facts prejudicial to the accused, other than facts that
bear directly on the charge, ...
In this case, the synopsis contained facts pertain
ing to three alleged offences originally sought to be
included in the charge as well as the one to which
the respondent limited the charge.
In opposing the application, the respondent's
counsel did not rely on the dictum in MacKay v.
Rippon' to the effect that this Court lacks juris
diction to entertain the application at all. I shall
assume that it has. I shall also refrain from analyz
ing the tautology that seems implicit in the appli
cant's position.
The fact that the convening authority had
before him information that, in the result, he
ought not to have had is not, to my mind, analo
gous to the situation considered in Doyle v. The
Queen, 2 where the magistrate had failed to put the
accused to his election nor to that considered in
recent Alberta and British Columbia decisions,'
where the information had not been confirmed by
a justice of the peace. Such election and confirma
tion are both expressly required by the Criminal
Code, R.S.C. 1970, c. C-34.
[1978] 1 F.C. 233 at p. 246.
2 [1977] 1 S.C.R. 597.
3 The Queen v. McGinnis, rendered June 14, 1979 (Alberta
Supreme Court). Maximick v. Keefer, rendered March 1, 1979
(S.C.B.C.).
The respondent relies on the dictum of the Nova
Scotia Supreme Court in Trenholm v. The King.'
Even if the faults of procedure are exactly what the applicant
argues for, those mistakes or faults do not in the remotest way
oust the jurisdiction of the Military Court any more than the
mistakes of a Magistrate on a preliminary investigation rob the
trial Court of jurisdiction to deal with an accused committed to
that Court by the Magistrate.
While that may be somewhat too sweeping in light
of the Doyle decision, it does seem apt in respect of
the sort of error that is alleged here.
The applicant's situation here is analogous to
that of an accused committed to trial by a magis
trate who considered evidence he ought not have
admitted. I cannot conceive that the jurisdiction of
the trial court would, in such circumstances, be
thereby ousted.
JUDGMENT
The application is dismissed with costs.
4 [1948] 1 D.L.R. 372 at p. 374.
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.