T-563-89
Achim Martin Glowczeski (Applicant)
v.
Minister of National Defence, Commander Mari
time Forces Pacific, Base Commander CFB
Esquimalt and Commanding Officer HMCS
Qu'Appelle (Respondents)
INDEXED AS: GLOWCZE.SKI V. CANADA (MINISTER OF NA
TIONAL DEFENCE) (T.D.)
Trial Division, Muldoon J.—Vancouver, March 17
and 20, 1989.
Constitutional law — Charter of Rights — Criminal process
— Military tribunals — No provision for release on bail of
junior N.C.Os. convicted and sentenced by commanding offi
cer, pending appeal or judicial review — Charter, s. 11(e)
guaranteeing right not to be denied reasonable bail without
just cause — Charter, s. 11 rights available to anyone prose
cuted by State for public offences involving punitive sanctions
— Service tribunals' proceedings not immune from testing
under Charter — Incarceration pending review contrary to
Charter, ss. 7, 9, 11(e) and 15.
Constitutional law — Charter of Rights — Equality rights
— Members of military service up to and including rank of
sergeant denied bail upon conviction and sentence by com
manding officer pending appeal and judicial review, although
provision for bail for warrant officers and commissioned offi
cers — Régime barring entire class of personnel from reason
able bail while according right to another class contravention
of Charter, ss. 11(e) and 15.
Federal Court jurisdiction-- Trial Division — Member of
armed forces, convicted and sentenced by commanding officer,
denied bail pending appeal or judicial review — Seeking
prohibition to prevent incarceration pending appeal, and bail
— Alleging denial of bail to junior N.C.Os. contrary to
Charter, ss. 7, 9, 11(e) and 15 — National Defence Act and
Queen's Regulations and Orders "laws of Canada" within
Constitution Act, 1867, s. 10! for "better administration" of
which Court created — Respondents constituting 'federal
board, commission or other tribunal" within definition in
Federal Court Act, s. 2 as exercising jurisdiction or powers
conferred by or under Act of Parliament — Federal Court Act,
s. 18 giving Trial Division exclusive jurisdiction to issue writ
of prohibition against any federal board, commission or other
tribunal — Although commanding officer acting on judicial or
quasi-judicial basis, Federal Court Act, s. 28(6) precluding
application under s. 28(1) in respect of proceeding for service
offence under National Defence Act — Charter, s. 52 subject
ing all federal and provincial laws to scrutiny for consistency
with Constitution.
Armed forces — Military discipline régime denying bail to
members up to and including rank of sergeant, but providing
for bail for warrant officers and commissioned officers pend
ing judicial review of conviction by commanding officers for
service offences, contrary to Charter, ss. 7, 9, 11(e) and 15.
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.), ss. 7, 9, 11(e), 15(1), 24(1).
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1), s. 101.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), s. 52(I).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2, 3,
18(a),(b), 28.
National Defence Act, R.S.C., 1985, c. N-5.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Wigglesworth, [1987] 2 S.C.R. 541; 60 C.R. (3d)
193; Andrews v. Law Society of British Columbia,
[1989] 2 S.C.R. 143.
REFERRED TO:
Schick v. Canada (Attorney General) et al. (1986), 5
F.T.R. 82 (F.C.T.D.); R. v. Hicks (1981), 63 C.C.C. (2d)
547; 129 D.L.R. (3d) 146; [1982] 1 W.W.R. 71 (Alta.
C.A.); R. v. Gingras (1982), 70 C.C.C. (2d) 27
(C.M.A.C.); Re Hinds and the Queen (1983), 4 C.C.C.
(3d) 322 (B.C.S.C.); Re Muise and the Queen (1984), 16
C.C.C. (3d) 285 (Ont. H.C.).
COUNSEL:
M. R. Hunt for applicant.
Gordon Macdonald and Stephen R. Nash for
respondents.
SOLICITORS:
Goult, McElmoyle & McKinnon, Victoria, for
applicant.
Gordon Macdonald, Victoria, and Deputy
Judge Advocate, FMO, Victoria, for respon
dents.
The following are the reasons for order ren
dered in English by
MULDOON J.: The applicant moves for a writ of
prohibition or an order to the same effect directing
that the respondents be prohibited from incar
cerating the applicant and thereunto be prohibited
from transporting the applicant to the Service
Detention Barracks at or near Edmonton, Alberta
for the purposes of incarcerating him. The appli
cant also moves for the granting of bail pending an
appeal or determination of the constitutionality
and legality of the decision of the respondent,
Commanding Officer HMCS Qu'Appelle, dated
March 9, 1989, and of the sentence to a term of
twenty-one days of imprisonment which he
imposed upon the applicant, at the conclusion of a
summary trial conducted pursuant to the Queen's
Regulations and Orders, [hereinafter QR & O],
Article 108.9, which sentence has been approved
by an "approving authority", the respondent admi
ral, the Commander Maritime Forces Pacific.
The stated grounds of the applicant's motion are
sections 7, 9, paragraph 11(e), and subsections
15(1) and 24(1) of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)]. Those provisions of the Con
stitution run as follows:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
9. Everyone has the right not to be arbitrarily detained or
imprisoned.
11. Any person charged with an offence has the right
(e) not to be denied bail without just cause
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
The applicant's arguments evince a wish that the
particulars in subsection 15(1) above also extended
to rank or social status; but they do not. However,
the list is merely exemplary and not exclusive.
Finally where the Court exercises a basic juris
diction over the subject-matter, subsection 24(1)
of the Charter guarantees that:
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
The respondents, by their counsel, argue that
this Court has no basic jurisdiction to intervene in
this matter. This Court derives its establishment
and ultimately its jurisdiction from section 101 of
the Constitution Act, 1867 [30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1)] which, in
its pertinent parts, provides:
101. The Parliament of Canada may, notwithstanding any
thing in this Act, from Time to Time provide for ... the
Establishment of any ... Courts for the better Administration
of the Laws of Canada. [Emphasis not in original text.]
Certainly, this Court is such a one as is men
tioned in the above-cited constitutional provision.
It is a superior Court. Thus, in accord with the
powers conferred upon it, Parliament, in section 3
of the Federal Court Act, R.S.C., 1985, c. F-7, has
provided:
3. The court of law, equity and admiralty in and for Canada
now existing under the name of the Federal Court of Canada is
hereby continued as an additional court for the better adminis
tration of the laws of Canada and shall continue to be a
superior court of record having civil and criminal jurisdiction.
It hardly needs analytical demonstration that
the National Defence Act, R.S.C., 1985, c. N-5,
and the QR & O are authentic "laws of Canada",
within the meaning of section 101, for the "better
administration" of which this Court is established.
Also, it hardly needs analytical demonstration
that, in so far as they are "exercising ... jurisdic
tion or powers conferred by or under an Act of
Parliament" including regulations made under the
authority thereof, the respondents are each "a
federal board, commission or other tribunal"
within the meaning of that expression under sec
tion 2 of the Federal Court Act. In that regard,
section 18 of the latter Act is instructive. It runs:
18. The Trial Division has exclusive original jurisdiction.
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, writ of mandamus or writ of quo warranto, or grant
declaratory relief, against any federal board, commission or
other tribunal; and
(b) to hear and determine any application or other proceed
ing for relief in the nature of relief contemplated by para
graph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
Now, because the commanding officer, when
conducting a summary trial, and the admiral,
when deciding whether or not to approve the sen
tence imposed by the former, are apparently acting
on a judicial or quasi-judicial basis, it will be
important here to note that these proceedings do
not transgress the provisions of section 28 of the
Federal Court Act, because subsection 28(6) leads
back again to section 18: Schick v. Canada (Attor-
ney General) et al. (1986), 5 F.T.R. 82 (F.C.T.D.,
Reed J.).
The role of determining whether or not the
applicant's constitutional rights are infringed, as
he alleges, is that of this superior Court, in the
circumstances. Those identified laws of Canada,
the National Defence Act and the QR & O, are
subject to constitutional scrutiny in regard to the
Charter, as are all federal and provincial laws
according to subsection 52(1) of the Constitution
Act, 1982 [Schedule B, Canada Act 1982, 1982, c.
11 (U.K.)] which proclaims:
52. (I) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
The applicant here complains that by the time
he can obtain a judicial determination of the legal
ity and constitutionality of the conviction and sen
tence imposed upon him by his commanding offi
cer, and the approval of such sentence by the
admiral, he will have been compelled to serve the
term, in full (21 days' imprisonment), to which he
was sentenced. That assertion is correct because of
(a) the time it will ordinarily take to obtain such
judicial determination, and (b) the deficiency of
the above-cited laws of Canada in not providing
for his, or any junior non-commissioned officer's,
interim release on bail, pending appeal from, or
other review of, the decisions made against him by
the respondent commanding officer and the
respondent admiral. It is most obviously unjust per
se, and manifestly violative of constitutional
imperative, to force the applicant to undergo the
full punishment of detention or imprisonment
imposed upon him before he can even obtain a
judicial determination of the legality and constitu
tionality of that imposition and the procedures
leading to it. That the applicant is not, at this
point of his search for a judicial determination of
his rights, to be denied reasonable bail without just
cause, is confirmed by several judicial decisions,
pre- and post-Charter: R. v. Hicks (1981), 63
C.C.C. (2d) 547; 129 D.L.R. (3d) 146; [ 1982] 1
W.W.R. 71 (Alta. C.A.); R. v. Gingras (1982), 70
C.C.C. (2d) 27 (C.M.A.C.) where the offence is
essentially a criminal offence and not a purely
military offence; Re Hinds and the Queen (1983),
4 C.C.C. (3d) 322 (B.C.S.C.) no provision of law
for bail, ergo paragraph 11(c) applicable after
conviction and subsection 24(1) of the Charter
were invoked; and Re Muise and the Queen
(1984), 16 C.C.C. (3d) 285 (Ont. H.C.) still no
provision of law for bail pending appeal, but
Charter invoked and Hicks, above, followed.
The respondents' counsel argues that, in effect
the Charter does not apply to this applicant in so
far as the opportunity to obtain bail pending
appeal or judicial review is concerned, because the
applicant elected to be tried summarily by his
commanding officer, and the Act and the QR & O
preclude such opportunity even if the right to be
released on reasonable bail be a constitutional
right. The respondents' counsel is wrong in that
argument, and for several reasons. It is known that
service tribunals' proceedings are not immune
from testing under the Charter, a particular posi
tion upon which the whole bench of the Supreme
Court of Canada was unanimous in R. v. Wiggles-
worth, [1987] 2 S.C.R. 541; 60 C.R. (3d) 193,
even while Estey J. dissented in the result. The
rights guaranteed by section 11 of the Charter are,
as stated in that case's headnote, available to
anyone prosecuted by the State for public offences
involving punitive sanctions, i.e. criminal, quasi-
criminal and regulatory offences, either federally
or provincially enacted. The absence of any nation
al emergency dictates precisely such as scrupulous
ly punctilious application of the Charter.
Another reason for which the absence of a bail
provision cannot withstand the Charter's constitu
tional imperatives is that by denying bail, in effect,
to members of rank up to and including sergeant,
but in making provision for bail after conviction
for warrant officers and commissioned officers, the
very system of military discipline, in this aspect,
violates subsection 15 (1) of the Charter. The
Supreme Court of Canada held in Andrews v. Law
Society of British Columbia, [ 1989] 2 S.C.R. 143,
at page 145 that a "rule which bars an entire class
of persons from certain forms of employment,
solely on the grounds of lack of citizenship status
... infringes s. 15 equality rights. Section 42 of the
Barristers and Solicitors Act is such a rule". So is
a régime which bars an entire class of military and
naval personnel from the right to reasonable bail
after conviction, pending appeal or judicial review,
while according such right to another class of
personnel even though both have been convicted of
offences under the National Defence Act and/or
the QR & O. The régime of discipline upon con
viction and sentence by a commanding officer is
inconsistent with the Constitution to the extent
that it infringes paragraph 11(e) and subsection
15(1) of Canada's constitutionally entrenched
Charter.
In the applicant's case, he appears to have valid
ly arguable complaints about the constitutionality
and other legality of the whole process whereby he
was ultimately sentenced to 21 days' imprisonment
with the admiral's approval. Personnel who by
rank and appointment are disciplinary adjudica
tors, and those who undertake to assist accused
members of the forces, ought to be given some
formal instruction about the principles of funda
mental justice. Such instruction would provide the
basic constitutional literacy in civics required of
any Canadian citizen and, perforce, of commis
sioned officers and warrant officers of Her Majes-
ty's Canadian Armed Forces. Such literacy would
not hinder, but rather, would enhance the perform
ance of adjudicatory functions which those person
nel are required to perform. Nor would such litera
cy result in any deplorable effect of regular
acquittals of the guilty, so long as reliable evidence
in proof, or by inference, of guilt beyond a reason
able doubt, be properly presented and tested
before the military tribunal. In any event, apart
from observing that the applicant demonstrates
serious questions to be determined, this Court is
not further concerned with their actual determina
tions.
The Court declares that the applicant's incarcer
ation is illegal and contrary to sections 7, 9, para
graph 11(e) and subsection 15 (1) of the Charter to
the extent that the cited legislation makes no
provision for the applicant to secure interim judi
cial release, on reasonable bail, before the time at
which he can have his conviction and sentence
tested by an independent judicial tribunal. It is
unconstitutional and makes no sense to keep the
applicant imprisoned for the whole term to which
he was sentenced, before a judicial tribunal can
determine whether the applicant ought lawfully to
have been so convicted and sentenced in the first
place.
The Court therefore prohibits the respondents,
and each of them, and everyone under their au
thority or command, from keeping the applicant
incarcerated if he signs an undertaking of the type,
mutatis mutandis, which is illustrated in and
under article 118.09 of the QR & O. The respon
dents' counsel agreed with the applicant's counsel
that the applicant can be trusted not to go a.w.o.1.
and accordingly, item (c) of the form of undertak
ing to be signed does not need to contain any
conditions. Counsel on both sides agreed to this
leaving blank of item (c).
In any event, if the applicant does not com
mence proceedings for an independent judicial
review by the close of business in this Court's
registry on March 29, 1989, he may lawfully then
be taken back into custody for the balance of the
21-day term to which he was sentenced. However,
so long as the applicant diligently prosecutes his
proceedings he may go about his lawful duties,
free of incarceration, until pronouncement of the
judicial determinations sought by him, and the
disposition of such further appeals therefrom as
may lawfully be taken, or until further order of
this Court.
No costs herein will be awarded to either the
applicant, or the respondents, each side therefore
bearing its own costs, in this proceeding, which,
despite its extraordinary nature, remains in
essence an application for reasonable bail.
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