T-1990-88
Michel Généreux (Applicant)
v.
General Court Martial and its Members, Minister
of National Defence and Lieutenant General J. A.
Fox (Respondents)
and
Attorney General of Canada (Mis -en-cause)
INDEXED As: GÉNÉREUX V. CANADA (GENERAL COURT MAR
TIAL) (T.D.)
Trial Division, Denault J.—Ottawa, April 26;
May 8, 1989.
Federal Court jurisdiction — Trial Division — Application
for order compelling General Court Martial to stay its pro
ceedings — Court having jurisdiction under Federal Court
Act, s. 17 as action also against Minister and Lieutenant
General as convener of Court Martial, both 'federal boards"
within legislated definition — Also having jurisdiction under
ss. 18 and 50 — Broad and liberal interpretation given to those
sections in recent cases discussed — Charter, s. 24 not appli
cable as no actual or threatened infringement of rights.
Practice — Res judicata — Application for order compell
ing General Court Martial to stay hearing of criminal charges
laid against applicant — Court previously refusing writ of
prohibition against hearing of same charges set for earlier date
— Not res judicata as different purview of relief different
hearings in question, and different legislative provisions giving
rise to applications.
Armed forces — Application for order compelling General
Court Martial to stay hearing of criminal charges against
applicant — Although serious constitutional issue raised con
cerning independence of court mania's, applicant unable to
show irreparable harm if hearing held.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 24.
Civil Code of Lower Canada, Art. 1241.
Combines Investigation Act, R.S.C. 1970, c. C-23.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 17, 18, 50.
Federal Court Rules, C.R.C., c. 663, R. 1909.
Narcotic Control Act, R.S.C. 1970, c. N-1.
National Defence Act, R.S.C. 1970, c. N-4.
National Defence Act, R.S.C., 1985, c. N-5, s. 165.
CASES JUDICIALLY CONSIDERED
APPLIED:
Yri-York Ltd. v. Canada (Attorney General), [1988] 3
F.C. 186 (C.A.); Operation Dismantle Inc. et al. v. The
Queen et al., [1985] 1 S.C.R. 441; New Brunswick
Electric Power Commission v. Maritime Electric Com
pany Limited, [1985] 2 F.C. 13 (C.A.); Kindler v.
Canada, [1989] 2 F.C. 38 (T.D.); Manitoba (Attorney
General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R.
110.
DISTINGUISHED:
Batchelor v. The Queen, [1978] 2 S.C.R. 988.
REFERRED TO:
Minister of Employment and Immigration Canada v.
Rodrigues, [ 1979] 2 F.C. 197 (C.A.); Baillargeon v.
Simmonds, [ 1984] 1 F.C. 923 (T.D.); American Cyana-
mid Co y Ethicon Ltd, [1975] 1 All E.R. 504 (H.L.);
Aldred v. The Queen (1987), 30 C.R.R. 63 (C.M.A.C.);
Généreux v. General Court Martial, [1989] 2 F.C. 685
(T.D.).
COUNSEL:
Jean Asselin and Guy Cournoyer for appli
cant.
No one appearing for respondents.
Jean-Marc Aubry, Q.C. and Richard Mor-
neau for mis -en-cause.
SOLICITORS:
Gaudreau and St-Cyr, Québec, for applicant.
No entry in record for respondents.
Deputy Attorney General of Canada for
mis -en-cause.
The following is the English version of the
reasons for order rendered by
DENAULT J.: The applicant was charged before
a General Court Martial and applied for a writ of
prohibition against that Court and its members to
challenge the independence and impartiality of the
Court. His application was dismissed [[1989] 2
F.C. 685] and he appealed to the Federal Court of
Appeal. He is now asking this Court to order the
General Court Martial to stay its hearings for as
long as the higher courts take to decide his appeal.
This application will require the Court to con
sider its jurisdiction to stay proceedings in a Gen
eral Court Martial, and if it has such jurisdiction,
to see whether this should be done.
SUMMARY OF FACTS
The applicant, a corporal in the Canadian
Forces, was arrested following a search at his
residence on September 15, 1986 and charged with
three counts of possession of narcotics for the
purposes of trafficking and one count of desertion.
Soon after his arrest, he was absent from his
military base without leave, from October 8, 1986
until his arrest on August 31, 1988. The applicant
was charged on September 20, 1988 and tried
unsuccessfully to obtain a writ of habeas corpus
from the Quebec Superior Court to secure his
release from the military detention centre at the
Valcartier base. A second identical proceeding
proved more successful: his application was
allowed subject to several conditions, including the
requirement that he remain under military author
ity, not leave the base and appear before the Court
Martial when required. The applicant was sum
moned before the General Court Martial on Octo-
ber 18, 1988, but attempted to prevent the holding
of this hearing by applying to this Court for a writ
of prohibition. This was denied by my brother
Dubé J. in his judgment of January 16 last. This
judgment has been appealed. The respondent Lieu
tenant General Fox has again convened the Gener
al Court Martial for March 14, 1989, and hence
the application at bar. It should be mentioned that
this application does not seek to stay the judgment
denying the writ of prohibition, but rather the
hearing fixed for March 14, 1989 and adjourned
pending this judgment.
The applicant submitted that this Court has
jurisdiction to order a stay of proceedings in the
General Court Martial and that it would be proper
to do so in the circumstances.
RES JUDICATA
Before considering the merits of the case, how
ever, the Court must dispose of the argument
made by counsel for the respondents that the
application at bar is res judicata.
Counsel submitted that the application at bar
and that disposed of by my brother judge are
similar except as to the title of the proceeding and
the hearing date: he is now asking the Court to
stay the matter which was to have been heard on
March 14, 1989, as the earlier application asked
the Court to issue a writ of prohibition for the
sitting of October 18, 1988. Counsel argued that
the matter is res judicata since the parties are the
same and both proceedings have the same purpose,
namely to prevent the Court Martial "from trying
the applicant on the charges laid against him", as
the applicant states in one of his pleadings. He
maintained that the applicant is again trying to
obtain what he has already been denied.
This argument cannot stand. For there to be res
judicata, the three identities of party, cause and
purpose have to be present. In short, there is a
presumption that the judgment is correct, prevent
ing a second action, when the latter is based on the
same cause, is between the same parties acting in
the same capacities and is for the same thing as in
the action decided (Article 1241 of the Civil Code
of Lower Canada). In the case at bar, inter alia,
not only is the purview of the writ of prohibition
not the same as the stay of proceedings, but the
same hearings were not in question, apart from the
fact that the legislative provisions giving rise to
each of the applications are quite different. The
matter is not res judicata and the Court must
consider the merits of the case.
JURISDICTION OF COURT
The applicant submitted that this Court has
jurisdiction to order a stay of proceedings in the
General Court Martial under sections 18 and 50 of
the Federal Court Act [R.S.C., 1985, c. F-7], Rule
1909 of the Federal Court Rules [C.R.C., c. 663]
and section 24 of the Canadian Charter of Rights
and Freedoms [being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.)].
The respondents for their part argued that the
Court lacked jurisdiction under subsections 17(1)
and (4) of the Federal Court Act on the ground
that the application is not seeking relief against
the Crown or one of its servants: instead, the
application is against a tribunal, namely the Gen
eral Court Martial, which cannot be regarded as
identical to the Crown. As to this the Court simply
notes that the action is also brought against the
Minister of National Defence and against Lieuten
ant General Fox in his capacity as convener of the
General Court Martial (National Defence Act,
R.S.C., 1985, c. N-5, section 165). These people
come within the definition of "federal board" con
tained in the Federal Court Act and may be the
subject of the remedies mentioned in section 18 of
that Act, which will be discussed below.
The respondents also argued that paragraph
50(1)(b) of the Federal Court Act cannot be inter
preted as conferring on that Court a power to stay
proceedings before the General Court Martial. It
was alleged, finally, that Rule 1909 cannot be
applied in the case at bar.
I will dispose quickly of the applicant's argu
ment seeking to support his application by refer
ence to Rule 1909. This argument has no merit as
it must be remembered that the purpose of the
application at bar is not to stay a judgment of this
Court but the proceeding before the General Court
Martial.
I will also dispose quickly of the applicant's
argument that subsection 24(1) of the Canadian
Charter of Rights and Freedoms can be a basis for
the Court's jurisdiction. In my opinion, it is not
sufficient to allege—which wasn't even done—that
the Court to which a person is summoned is not an
independent and impartial tribunal within the
meaning of section 7 and paragraph 11(d) of the
Charter, which might constitute an infringement
of the applicant's right to equality as guaranteed
by section 15 of the Charter.
Deciding a similar point in Yri-York Ltd. v.
Canada (Attorney General), [1988] 3 F.C. 186
(C.A.), Heald J. said the following (at
pages 200-201):
Subsection 24(1) of the Charter entitles anyone whose Charter
rights "have been infringed or denied" (emphasis added) to
apply to a court of competent jurisdiction for an appropriate
remedy. In the case at bar, the appellant's rights have not
actually been infringed at this juncture. Accordingly, in my
view, an application under section 24 is premature since no
infringement or denial of Charter rights has as yet occurred.
The applicant cannot allege any actual infringe
ment of his rights in the case at bar. Additionally,
as Dickson C.J. observed in Operation Dismantle
Inc. et al. v. The Queen et al., [1985] 1 S.C.R.
441, at page 450:
... regardless of the basis upon which the appellants advance
their claim for declaratory relief—whether it be s. 24(1) of the
Charter, s. 52 of the Constitution Act, 1982, or the common
law—they must at least be able to establish a threat of viola
tion, if not an actual violation, of their rights under the
Charter.
There is nothing in the record to indicate that
there was an actual or even threatened infringe
ment. In the circumstances, therefore, the Court
cannot base its jurisdiction on subsection 24(1) of
the Charter.
What about sections 18 and 50 of the Federal
Court Act?
Until recently, the courts' had held that section
50 only allowed this Court to stay proceedings
brought before it, not those begun before another
tribunal.
This limiting interpretation has been altered by
three recent judgments, 2 including two unanimous
judgments of the Federal Court of Appeal. In each'
of these, sections 18 and 50 of the Act have been
given a broad and liberal interpretation. In Yri-
York Ltd. v. Canada (Attorney General), the
Court had to decide an appeal against the refusal
of a trial court to issue a writ of prohibition
staying a hearing held under the Combines Inves
tigation Act [R.S.C. 1970, c. C-23] until an issue
' Minister of Employment and Immigration Canada v.
Rodrigues, [1979] 2 F.C. 197 (C.A.); Baillargeon v. Sim-
monds, [1984] 1 F.C. 923 (T.D.).
2 Yri-York Ltd. v. Canada (Attorney General), [1988] 3 F.C.
186 (C.A.); New Brunswick Electric Power Commission v.
Maritime Electric Company Limited, [1985] 2 F.C. 13 (C.A.);
Kindler v. Canada, [1989] 2 F.C. 38 (T.D.).
of a constitutional nature was decided by the
Supreme Court of Canada. In that case, the
respondent alleged that the application was in fact
for a stay. Heald J., speaking for the Court of
Appeal, considered that (at page 196):
Thus, the jurisdiction conferred upon the Court pursuant to
paragraph 18(a) is broadened by the provisions of paragraph
18(b). Accordingly, in my view, the Trial Division of this Court
has been given jurisdiction to deal with an application of this
nature pursuant to section 18 of the Federal Court Act. Even if
counsel for the respondents is accurate in characterizing the
motion as an application for a stay, I think this Court would
still have jurisdiction under section 18. [My emphasis.]
As regards the use of section 50 of the Federal
Court Act to affirm the jurisdiction of the Federal
Court to order a stay of proceedings, Heald J. in
Yri-York (at page 200) approved the viewpoint of
his brother Stone (who sat on both courts) in New
Brunswick Electric Power Commission v. Mari
time Electric Company Limited, who said (at
page 24):
Subsection 50(1) of the Act is not on its face limited to
proceedings "before the Court". The inclusion of those words
or words of like effect would, I think, have removed any doubt
as to the intention of Parliament. Omission of them from
subsection 50(1) lends some support to an argument that by
"proceedings" Parliament intended to confer power, in appro
priate circumstances, to stay proceedings in addition to those
pending in the Court itself. [My emphasis.]
In Kindler v. Canada, Pinard J. also concluded
that the Federal Court has jurisdiction to order a
stay under both sections 18 and 50.
I consider that the Federal Court has the neces
sary jurisdiction to order the proceedings before
the General Court Martial stayed if this is
appropriate.
WHETHER STAY APPROPRIATE
The applicant, who was charged with offences
against the Narcotic Control Act [R.S.C. 1970, c.
N-1] and the National Defence Act [R.S.C. 1970,
c. N-4], submitted that the fact of being tried by a
General Court Martial the nature, participants
and proceedings in which have some of the charac
teristics of a criminal prosecution requires a differ-
ent approach from proceedings in a civil or
administrative matter. In particular, he suggested
that determining the balance of convenience and
the public interest follows a different logic, one
peculiar to the criminal law. In his submission, the
responses given in the field of administrative law
are not adequate to deal with this application for a
stay of proceedings.
The applicant relied in particular on the judg
ment of the Supreme Court in Batchelor v. The
Queen, [1978] 2 S.C.R. 988, in which the coun-
try's highest court allowed the appeal of an
accused who had unsuccessfully sought to obtain
[sic] an application for prohibition against the
Ontario Provincial Court. In my view, the facts of
the case at bar are not in any way comparable to
those in that case. There the appellant alleged that
a Provincial Court judge had failed to observe a
peremptory rule of the Ontario Criminal Rules
requiring him "to forthwith return to the Regis
trar's Office ... other papers or documents touch
ing the matter ...", upon service of the notice of
an application for prohibition. There is no similar
provision in the National Defence Act requiring
the Court Martial to relinquish jurisdiction, or at
least to forward the documents before it to a court
responsible for reviewing the decision.
Counsel for the applicant further submitted that
his client met the rules laid down by the Supreme
Court in Manitoba (Attorney General) v. Met
ropolitan Stores Ltd., [ 1987] 1 S.C.R. 110. In that
case the Supreme Court discussed the rules gov
erning the exercise of a judge's discretionary
power to order a stay of proceedings pending a
challenge to the constitutionality of a legislative
provision. In a unanimous judgment, the Court
indicated per Beetz J. that "A stay of proceedings
and an interlocutory injunction are remedies of the
same nature" and "have sufficient characteristics
in common to be governed by the same rules and
the courts have rightly tended to apply to the
granting of interlocutory stay the principles which
they follow with respect to interlocutory injunc
tions" (at page 127). Among these tests, the first is
a preliminary and provisional evaluation of the
merits of the case. In Metropolitan Stores, the
Supreme Court refrained from expressing any
opinion whatever as to the sufficiency or adequacy
in any other type of case 3 of the formulation used
by the House of Lords in American Cyanamid Co
y Ethicon Ltd, [1975] 1 All E.R. 504, which used
the test of a "serious question" to be decided.
Beetz J. nonetheless said (at page 128):
In my view, however, the American Cyanamid "serious ques
tion" formulation is sufficient in a constitutional case where, as
indicated below in these reasons, the public interest is taken
into consideration in the balance of convenience.
He also discussed at length the problems confront
ed by a trial judge at the interlocutory stage in
deciding questions on the merits.
As to this the applicant simply argued that the
General Court Martial is not an independent and
impartial tribunal able to try the applicant within
the meaning of the Canadian Charter of Rights
and Freedoms. He also mentioned the fact that the
question presented in the case at bar is serious
since on December 3, 1987 the Supreme Court in
fact granted leave to appeal [[1987] 2 S.C.R. v]
from a judgment of the Court Martial Appeal
Court in which the same questions of substance
were raised as in the case at bar Aldred v. The
Queen (1987), 30 C.R.R. 63).
For present purposes, the Court could hardly
find that the applicant is not raising a serious
question relating to the Charter when the Supreme
Court has already agreed to hear an appeal
regarding the independence and impartiality of the
Court Martial. It is therefore admitted that an
appeal from dismissal of a writ of prohibition in
which this question is raised is a serious question,
even though in fact in the application at bar the
question is only submitted indirectly to the Court
since the applicant is primarily interested in a stay
of proceedings.
The other tests applied by the Supreme Court in
Metropolitan Stores had to do with irreparable
harm and the balance of convenience. In short, the
Court must consider whether the applicant would
suffer irreparable harm if the hearings before the
General Court Martial were not stayed.
3 The case involved a patent infringement.
Counsel for the applicant emphasized the crimi
nal nature of the proceedings brought against his
client and asked the Court not to apply the solu
tions provided by administrative law and to take a
more liberal approach to the situation.
After considering the evidence in the record and
the arguments and case law cited by counsel for
the applicant, the Court has come to the conclu
sion that the applicant has presented no evidence
in the case at bar that the holding of a hearing by
the General Court Martial would cause him
irreparable harm. First, I noted from reading the
judgment denying the writ of prohibition that the
applicant was not questioning the impartiality of
the members of the General Court Martial nor
was he asking this Court to find the enabling
legislation to be invalid. Instead, he was challeng
ing the "independence" of the Court and the fact
that his rights were in danger of being infringed.
Second, I was particularly intrigued by the small
amount of attention paid by the applicant to the
presumption of innocence he enjoys even before a
military tribunal and the possibility of an acquit
tal, which is just as plausible as that of a convic
tion, if the proceedings were to go forward. The
same applies to the possibility that the question of
the General Court Martial's impartiality and in
dependence could be raised before that Court,
which undoubtedly has the power to consider it.
The applicant could also if convicted raise the
same question before the Court Martial Appeal
Court. Beginning disciplinary proceedings and
allowing them to go forward does not render void
or pointless an appeal already filed with the Feder
al Court of Appeal. The restrictions currently
placed on the applicant's freedom also cannot be
regarded as irreparable harm or placed in the
balance of convenience, since they result from a
judgment on an application of habeas corpus made
by the applicant himself, which could well be the
subject of review.
There is no basis in the circumstances for stay
ing the proceedings before the General Court
Martial.
For these reasons, the application is dismissed
with costs.
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.