T-4074-81
In the matter of 454 054 511, Corporal Brydges,
Raymond Theodore, Canadian Armed Forces
Regular,
and
In the matter of Standing Court Martial convened
to Trial 454 054 511, Corporal Brydges, Raymond
Theodore, Canadian Armed Forces, of the
H.M.C.S. Saguenay
Trial Division, Dubé J.—Halifax, September 3;
Ottawa, September 18, 1981.
Jurisdiction — Court martial — Prerogative writs — Cer-
tiorari — Application for writ of certiorari to quash a Stand
ing Court Martial on the ground that it denied a motion of the
defence for an adjournment to allow for the attendance of a
character witness — Trial Division has jurisdiction to issue a
writ of certiorari against any federal board, commission or
other tribunal — Court of Appeal has jurisdiction to review
decisions of tribunals such as a court martial, but s. 28(6) of
the Federal Court Act excludes from such review proceedings
for a service offence under the National Defence Act —
National Defence Act gives the applicant a right to appeal to
the Court Martial Appeal Court — Whether the Federal
Court has jurisdiction to grant certiorari against a court
martial — Application is denied — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, ss. 18, 28 — National Defence Act,
R.S.C. 1970, c. N-4, ss. 160, 197, 201, 209.
Martineau v. Matsqui Institution Disciplinary Board
[1980] 1 S.C.R. 602, applied.
APPLICATION.
COUNSEL:
G. Michael Owen for applicant.
A. R. Pringle for respondent.
SOLICITORS:
G. Michael Owen, Halifax, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
DuBÉ J.: This application is for a writ of certio-
rari to quash the Standing Court Martial of Lead
ing Seaman Brydges of H.M.C.S. Saguenay, duly
convened by Vice-Admiral Fulton, Commander of
Maritime Command, under the provisions of sec-
tion 18 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, on the ground that the court
martial denied a motion of the defence for an
adjournment to allow for the attendance of one Lt.
Lazenby as a witness for the defence.
In my view, this Court has no jurisdiction to
grant certiorari against a court martial.
Under the provisions of section 18 of the Feder
al Court Act the Trial Division has exclusive origi
nal jurisdiction to issue a writ of certiorari against
any federal board, commission, or other tribunal.
However, such a writ may only issue with regard
to administrative matters and to ensure that the
tribunal has acted fairly'. Under section 28 of the
Act, the Federal Court of Appeal has jurisdiction
to hear an application to review a decision of a
tribunal made in the course of proceedings while
acting on a judicial or quasi-judicial basis, as
would be the decision of a court martial in the
course of a trial. But subsection 28(6) excludes
from such review proceedings for a service offence
under the National Defence Act 2 . The subsection
reads:
28....
(6) Notwithstanding subsection (1), no proceeding shall be
taken thereunder in respect of a decision or order of the
Governor in Council, the Treasury Board, a superior court or
the Pension Appeals Board or in respect of a proceeding for a
service offence under the National Defence Act.
Section 197 of the National Defence Act pro
vides a right to appeal to every person who has
been found guilty by a court martial in respect of
certain matters. The section reads:
Right to Appeal
197. Every person who has been tried and found guilty by a
court martial, subject to subsection 199(3), has a right to
appeal in respect of any or all of the following matters:
(a) the severity of the sentence;
(b) the legality of any or all of the findings; or -
' See Martineau v. Matsqui Institution Disciplinary Board
[1980] 1 S.C.R. 602.
2 R.S.C. 1970, c. N-4.
(c) the legality of the whole or any part of the sentence.
The time for such an appeal under section 197 is
limited under section 199 to fourteen days after
delivery to the offender of a copy of the minutes of
the proceedings. In the instant case, the minutes of
the proceedings have not yet been delivered to
Corporal Brydges. Thus, he is still fully entitled to
appeal his conviction before the proper court
which is the Court Martial Appeal Court (section
201).
Moreover, after the expiration of the right to
appeal, the proceedings of every court martial
shall be reviewed by the Judge Advocate General
in respect of any matter mentioned in paragraph
197(b) or (c) (section 209).
Parliament, therefore, has provided remedies
under the National Defence Act for the alleged
denial of rights of the applicant.
But even if the Federal Court had jurisdiction to
issue a certiorari against a court martial, I am of
the view that the proper exercise of judicial discre
tion would rule against it in this instance. It
appears clearly from the affidavits filed in support
and against the motion and the transcript of the
President's ruling that the court martial was con
ducted properly and dealt fairly with the motion of
Corporal Brydges.
On July 16, 1981, Vice-Admiral Fulton ordered
the Standing Court Martial to be formed to try
Corporal Brydges on several drug charges. On that
date the applicant's solicitor wrote a letter to the
Captain Assistant Deputy Judge Advocate
requesting the attendance of certain witnesses,
including Lt. Lazenby, and the letter was duly
brought to the attention of the convening
authority.
The attendance of the witnesses was requested
to present evidence pertaining to the good charac
ter of the accused. The convening authority, upon
being informed of this, wrote to the President of
the Standing Court Martial on July 22, 1981, and
informed him that in view of the general nature of
the evidence sought, and having regard to the
exigencies of the service, the attendance of Lt.
Lazenby could not reasonably be obtained.
At the opening of the Trial on July 28, 1981, the
applicant's solicitor moved pursuant to section 160
of the National Defence Act for the attendance of
Lt. Lazenby. The President of the Standing Court
Martial heard the submissions and denied the
motion. Section 160 of the National Defence Act
provides for the procurement of attendance of
witnesses. It reads as follows:
Witnesses at Courts Martial
160. (1) The commanding officer of the accused person, the
authority who convenes a court martial, or, after the assembly
of the court martial, the president, shall take all necessary
action to procure the attendance of the witnesses whom the
prosecutor and the accused person request to be called and
whose attendance can, having regard to the exigencies of the
service, reasonably be procured, but nothing in this subsection
requires the procurement of the attendance of any witnesses,
the request for whose attendance is deemed by any such
commanding officer, authority who convenes a court martial or
president to be frivolous or vexatious.
(2) Where a request by the accused person for the attend
ance of a witness is deemed to be frivolous or vexatious, the
attendance of that witness, if his attendance, having regard to
the exigencies of the service, can reasonably be procured, shall
be procured if the accused person pays in advance the fees and
expenses of the witness at the rates prescribed in regulations,
and if at the trial the evidence of the witness proves to be
relevant and material, the president of the court martial or the
authority who convened the court martial shall order that the
accused person be reimbursed in the amount of the fees and
expenses of the witness so paid.
(3) Nothing in this section limits the right of the accused
person to procure and produce at the trial at his own expense
such witnesses as he may desire, if the exigencies of the service
permit.
The transcript of the ruling reveals that the
President, after careful consideration of the
motion, felt that if Lt. Lazenby were "in any way,
shape or form indicated to the court as being an
essential witness ... I would certainly be inclined
to grant the motion". In response to an interjection
of defence counsel, the President added that if Lt.
Lazenby "were a party to the offences or had
observed something ... remotely close in time so
that it would have that direct relevance to the
evidence", he would call for the defendant. He said
that since the evidence was "simply to indicate his
opinion of the veracity of the accused", that such
evidence was "not necessary to the ends of
justice".
Moreover, the President reminded the defence
counsel of the provisions of subsection 160(2) of
the Act which allow the accused person to pay in
advance the fees and expenses of a witness: if at
the trial the evidence of such witness proves to be
relevant, the accused is reimbursed. The defence
counsel replied that he would prefer a few days
adjournment to make an application to the Federal
Court.
The Standing Court Martial was adjourned for
two weeks, but the applicant apparently made no
effort to procure Lt. Lazenby during that period.
The instant application to this Court was filed only
on August 10, or the day before the reopening of
the court martial. The court martial resumed on
August 11, and the applicant was convicted of four
charges of trafficking in drugs and one charge of
possession of drugs.
The prerogative writ of certiorari is a discretion
ary and extraordinary remedy. It may not be
demanded as of right. I can see no valid reason in
this instance for granting such a remedy, even if I
were vested with the jurisdiction so to do, as the
President of the court martial dealt fairly with the
accused and had every right in the circumstances
to deny the attendance of the witness. Should the
applicant still feel aggrieved, the remedies extend
ed under the National Defence Act are still open to
him. This motion, therefore, is denied with costs.
ORDER
The motion is denied with costs.
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