Her Majesty the Queen (appellant) v. Paul Wehmeier (respondent) (CMAC-553; 2014 CMAC 5) Indexed As: R. v. Wehmeier (P.)

Transcription

1 Her Majesty the Queen (appellant) v. Paul Wehmeier (respondent) (CMAC-553; 2014 CMAC 5) Indexed As: R. v. Wehmeier (P.) Court Martial Appeal Court Blanchard, C.J., Pelletier and Trudel, JJ.A. April 15, Summary: Wehmeier was a former Canadian Forces member who was employed as a peer educator at a decompression centre operated by the Forces in Germany and was subject to the Code of Service Discipline (CSD). While there, he attended a beer festival where he allegedly became intoxicated and committed offences against three members of the Forces. The Director of Military Prosecutions (DMP) decided to convene a Standing Court Martial and Wehmeier was charged with sexual assault, uttering threats and assault contrary to s. 130 of the National Defence Act. The DMP refused Wehmeier's requests to have the matter transferred to civilian authorities. Wehmeier applied for a stay of proceedings under s. 24(1) of the Charter. He argued that the DMP's decision to prefer charges against a civilian subject to the CSD violated s. 7 of the Charter. He also argued that the DMP's decision to continue with a military prosecution was an abuse of process. The Chief Military Judge, in a decision with neutral citation 2012 CM 1007, held that the DMP's conduct to continue with a military prosecution amounted to an abuse of process. The judge granted the application and terminated proceedings instead of granting a stay. The Crown appealed. The Federal Court of Appeal dismissed the appeal. The court held that the decision to prefer charges and to continue with a Standing Court Martial were decisions of the DMP alone to make and came within the core of prosecutorial discretion. The Chief Military Judge erred in finding that there was an abuse of process in that regard. However, even though the DMP was entitled to proceed, the resulting proceedings were not consistent with the principles of fundamental justice (i.e., contrary to s. 7 of the Charter). The court agreed that the appropriate remedy was to terminate the proceedings against Wehmeier in the Standing Court Martial without adjudication. Armed Forces - Topic 8624 Offences - Trials - Standing court martials - [See second Armed Forces - Topic ]. Armed Forces - Topic Offences - Trials - Prosecutorial discretion - The Court Martial Appeal Court stated that "Although the penal military justice system possesses its own system of prosecution, defence and tribunals, the role played by the DMP [Director of Military Prosecutions] is similar to that exercised by the Attorney General. We are satisfied on the record before us that, while there are differences between the position of the Attorney General and the DMP..., these differences do not justify the conclusion that a different scope of

2 prosecutorial discretion applies to the DMP. The principles articulated in the jurisprudence... with regard to the nature of the role of the prosecutor, prosecutorial discretion and the circumstances, which may warrant the review of a prosecutorial decision, find application to the DMP and the exercise of prosecutorial discretion by the DMP" - See paragraph 31. Armed Forces - Topic Offences - Trials - Prosecutorial discretion - Wehmeier was a former Canadian Forces member employed at a Forces decompression centre in Germany and was subject to the Code of Service Discipline (CSD) - The Director of Military Prosecutions (DMP) charged Wehmeier with sexual assault, uttering threats, and assault and convened a Standing Court Martial - The DMP refused to transfer the matter to civilian authorities - Wehmeier applied for a stay of proceedings - The Federal Court of Appeal held that the decision to prefer charges and to continue with a Standing Court Martial were matters of prosecutorial discretion - There was no abuse of process in that regard - However, even though the DMP was entitled to proceed, the resulting proceedings were not consistent with the principles of fundamental justice (i.e., contrary to s. 7 of the Charter) - The prosecution in the military justice system was arbitrary because it lacked any connection with the objectives sought to be achieved by making accompanying civilians subject to the CSD - Further, the proceedings had a disproportionate effect on Wehmeier relative to the state's interest in the proceeding because he would lose certain procedural rights available under the Criminal Code - As a remedy, the proceedings against Wehmeier in the Standing Court Martial were terminated without adjudication. Armed Forces - Topic 8630 Offences - Trials - Stay of proceedings - [See second Civil Rights - Topic 8374]. Civil Rights - Topic Security of the person - Law enforcement - Prosecutorial discretion - The Court Martial Appeal Court stated that "... prosecutorial discretion is subject to a high level of deference. In light of the panoply of prosecutable crimes, the prosecutor has a wideranging discretion in bringing, continuing and dismissing charges, recommending other forums or appropriate sentences. However, acts of prosecutorial discretion are not immune from judicial review as they are subject to the abuse of process doctrine... The definition and application of the doctrine are an exercise in balancing societal and individual concerns... in Nixon, the Supreme Court recognized two forms of abuse of process which would be caught by section 7 of the Charter: '(1) prosecutorial conduct affecting the fairness of the trial; and (2) prosecutorial conduct that 'contravenes fundamental notions of justice and thus undermines the integrity of the judicial process'... The latter is referred to as the residual category" - See paragraphs 32 and 33. Civil Rights - Topic Security of the person - Law enforcement - Prosecutorial discretion - The Court Martial Appeal Court stated that "... It is true that an act of prosecutorial discretion that results in an abuse of process can amount to a breach of a defendant's rights under section 7 of the Charter... However, it does not follow that every section 7 challenge to proceedings that

3 flow from a prosecutor's decision must be founded on abuse of process. Prosecutorial decisions made in good faith may result in proceedings which are nonetheless constitutionally flawed. It cannot be the case that a respondent is unable to challenge those proceedings on substantive grounds simply because the prosecutor's exercise of his discretion in initiating those proceedings is beyond reproach" - See paragraph 48. Civil Rights - Topic 8374 Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - Wehmeier was a civilian member of the Canadian Forces who was subject to the Code of Service Discipline - The Director of Military Prosecutions (DMP) charged Wehmeier with three offences and convened a Standing Court Martial - The DMP refused to transfer the matter to civilian authorities - Wehmeier sought a stay of proceedings - The Federal Court of Appeal held that even though it was within the prosecutorial discretion of the DMP to proceed, the resulting proceedings were contrary to the principles of fundamental justice (i.e., Charter, s. 7) - As a remedy, the proceedings against Wehmeier in the Standing Court Martial were ordered terminated without adjudication - A stay of proceedings was not an appropriate remedy under s. 24(1) of the Charter because such an extreme remedy could only be granted in the clearest of cases and it might preclude the possibility of a trial in the civilian criminal courts since a stay of proceedings would support a plea of autrefois acquit - See paragraph 63. Appeal Court stated that "Prosecutorial discretion is a fundamental principle of our criminal justice system in which it is viewed as a constitutional principle. Prosecutors must be able to exercise their authority to initiate, continue or cease prosecutions independently. The law respects this discretion by mandating that courts cannot and should not interfere with prosecutorial discretion, providing it is exercised in good faith and in the interests of justice. The limited oversight of prosecutorial discretion is grounded in the principles of the separation of powers and the rule of law under the Constitution..." - See paragraphs 26 and 27. Appeal Court stated that "Not every discretionary decision falls within the scope of prosecutorial discretion. What the courts protect are 'the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for'... This definition of core prosecutorial discretion was confirmed in R. v. Nixon, 2011 SCC... Once a decision is found to be within this core, as opposed to having to do with tactics or conduct before the Court, 'the courts cannot interfere except in such circumstances of flagrant impropriety or in actions for "malicious prosecution"'... Tactics and conduct before the Court, on the other hand, are within the inherent jurisdiction of the Court to control its own processes..." - See paragraphs 28 and 29.

4 Appeal Court stated that "The Supreme Court cautioned that an evidentiary foundation was required to determine whether an inquiry was warranted in light of the disinclination to review prosecutorial discretion. Unless there is an evidentiary foundation supporting the allegation of abuse of process resulting from an exercise of prosecutorial discretion, courts should decline to proceed with a review... Therefore, if the act falls within the core elements of prosecutorial discretion, a preliminary threshold must be established. If this threshold is not met, the analysis ends here. If the threshold is met, the court can then proceed with the inquiry into prosecutorial discretion to determine whether the exercise of discretion amounts to an abuse of process" - See paragraph 30. General principles - Prosecution of crime - Prosecutorial discretion - [See both Armed Forces - Topic and both Civil Rights - Topic ]. Cases Noticed: R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 27]. Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275; 2002 SCC 65, refd to. [para. 27]. R. v. Nixon (O.), [2011] 2 S.C.R. 566; 417 N.R. 274; 502 A.R. 18; 517 W.A.C. 18; 2011 SCC 34, refd to. [para. 29]. Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 29]. R. v. J.S.K.T., 2008 CMAC 3 (Can. Ct. Martial App. Ct.), refd to. [para. 31]. R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 33]. R. v. Babos (A.), [2014] N.R. TBEd. FE.018; 2014 SCC 16, refd to. [para. 34]. Kvello et al. v. Miazga et al., [2009] 3 S.C.R. 339; 395 N.R. 115; 337 Sask.R. 260; 464 W.A.C. 260; 2009 SCC 51, refd to. [para. 35]. R. v. Gill (R.), (2012), 295 O.A.C. 345; 2012 ONCA 607, refd to. [para. 43]. PHS Community Services Society et al. v. Canada (Attorney General), [2011] 3 S.C.R. 134; 421 N.R. 1; 310 B.C.A.C. 1; 526 W.A.C. 1; 2011 SCC 44, refd to. [para. 52]. Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 53]. R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 13]. Statutes Noticed: Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 24 [para. 11]. National Defence Act, R.S.C. 1985, c. N-5, sect. [para. 11]. Counsel: Commander J.B.M. Pelletier and Major A.M. Tamburro, for the appellant; Major Alison Reed and LCdr Marc Létourneau, for the respondent. Solicitors of Record: Directorate of Military Prosecutions, Ottawa, Ontario, for the appellant;

5 Directorate of the Defence Counsel Services, Ottawa, Ontario, for the respondent. This appeal was heard in Ottawa, Ontario, on November 22, 2013, before Blanchard, C.J., Pelletier and Trudel, JJ.A., of the Court Martial Appeal Court. The following decision was delivered by the court, on April 15, Editor: Elizabeth M.A. Turgeon Appeal dismissed. Armed Forces - Topic 8624 Offences - Trials - Standing court martials - Wehmeier was a former Canadian Forces member employed at a Forces decompression centre in Germany and was subject to the Code of Service Discipline (CSD) - The Director of Military Prosecutions (DMP) charged Wehmeier with sexual assault, uttering threats, and assault and convened a Standing Court Martial - The DMP refused to transfer the matter to civilian authorities - Wehmeier applied for a stay of proceedings - The Federal Court of Appeal held that the decision to prefer charges and to continue with a Standing Court Martial were matters of prosecutorial discretion - There was no abuse of process in that regard - However, even though the DMP was entitled to proceed, the resulting proceedings were not consistent with the principles of fundamental justice (i.e., contrary to s. 7 of the Charter) - The prosecution in the military justice system was arbitrary because it lacked any connection with the objectives sought to be achieved by making accompanying civilians subject to the CSD - Further, the proceedings had a disproportionate effect on Wehmeier relative to the state's interest in the proceeding because he would lose certain procedural rights available under the Criminal Code - As a remedy, the proceedings against Wehmeier in the Standing Court Martial were terminated without adjudication. Armed Forces - Topic 8630 Offences - Trials - Stay of proceedings - Wehmeier was a civilian member of the Canadian Forces who was subject to the Code of Service Discipline - The Director of Military Prosecutions (DMP) charged Wehmeier with three offences and convened a Standing Court Martial - The DMP refused to transfer the matter to civilian authorities - Wehmeier sought a stay of proceedings - The Federal Court of Appeal held that even though it was within the prosecutorial discretion of the DMP to proceed, the resulting proceedings were contrary to the principles of fundamental justice (i.e., Charter, s. 7) - As a remedy, the proceedings against Wehmeier in the Standing Court Martial were ordered terminated without adjudication - A stay of proceedings was not an appropriate remedy under s. 24(1) of the Charter because such an extreme remedy could only be granted in the clearest of cases and it might preclude the possibility of a trial in the civilian criminal courts since a stay of proceedings would support a plea of autrefois acquit - See paragraph 63.

6 Appeal Court stated that "Although the penal military justice system possesses its own system of prosecution, defence and tribunals, the role played by the DMP [Director of Military Prosecutions] is similar to that exercised by the Attorney General. We are satisfied on the record before us that, while there are differences between the position of the Attorney General and the DMP..., these differences do not justify the conclusion that a different scope of prosecutorial discretion applies to the DMP. The principles articulated in the jurisprudence... with regard to the nature of the role of the prosecutor, prosecutorial discretion and the circumstances, which may warrant the review of a prosecutorial decision, find application to the DMP and the exercise of prosecutorial discretion by the DMP" - See paragraph 31. General principles - Prosecution of crime - Prosecutorial discretion - Wehmeier was a former Canadian Forces member employed at a Forces decompression centre in Germany and was subject to the Code of Service Discipline (CSD) - The Director of Military Prosecutions (DMP) charged Wehmeier with sexual assault, uttering threats, and assault and convened a Standing Court Martial - The DMP refused to transfer the matter to civilian authorities - Wehmeier applied for a stay of proceedings - The Federal Court of Appeal held that the decision to prefer charges and to continue with a Standing Court Martial were matters of prosecutorial discretion - There was no abuse of process in that regard - However, even though the DMP was entitled to proceed, the resulting proceedings were not consistent with the principles of fundamental justice (i.e., contrary to s. 7 of the Charter) - The prosecution in the military justice system was arbitrary because it lacked any connection with the objectives sought to be achieved by making accompanying civilians subject to the CSD - Further, the proceedings had a disproportionate effect on Wehmeier relative to the state's interest in the proceeding because he would lose certain procedural rights available under the Criminal Code - As a remedy, the proceedings against Wehmeier in the Standing Court Martial were terminated without adjudication. Appeal Court stated that "... prosecutorial discretion is subject to a high level of deference. In light of the panoply of prosecutable crimes, the prosecutor has a wideranging discretion in bringing, continuing and dismissing charges, recommending other forums or appropriate sentences. However, acts of prosecutorial discretion are not immune from judicial review as they are subject to the abuse of process doctrine... The definition and application of the doctrine are an exercise in balancing societal and individual concerns... in Nixon, the Supreme Court recognized two forms of abuse of process which would be caught by section 7 of the Charter: '(1) prosecutorial conduct affecting the fairness of the trial; and (2) prosecutorial conduct that 'contravenes fundamental notions of justice and thus undermines the integrity of the judicial process'... The latter is referred to as the residual category" - See paragraphs 32 and 33.

7 Appeal Court stated that "... It is true that an act of prosecutorial discretion that results in an abuse of process can amount to a breach of a defendant's rights under section 7 of the Charter... However, it does not follow that every section 7 challenge to proceedings that flow from a prosecutor's decision must be founded on abuse of process. Prosecutorial decisions made in good faith may result in proceedings which are nonetheless constitutionally flawed. It cannot be the case that a respondent is unable to challenge those proceedings on substantive grounds simply because the prosecutor's exercise of his discretion in initiating those proceedings is beyond reproach" - See paragraph 48.