Brocklebank v. Canada ( Minister of National Defence )
T-2333-94
Rothstein J.
6/10/94
7 pp.
Application for interim stay of applicant's General Court Martial -- Applicant arguing reasonable apprehension of bias because persons of same rank as members of Court Martial i.e. officers, allegedly implicated but not charged -- Application dismissed -- Some persons of same class as members of Court Martial i.e, officers, have been charged -- Even if other officers should have been charged and were not, not giving rise to reasonable apprehension of bias simply because members of General Court Martial also officers -- Absent some other evidence in some way connecting all officers and specifically members of General Court Martial with alleged preference given to officers who were involved, no factual basis creating apprehension of bias by members of General Court Martial against applicant in minds of reasonable observer -- Apprehension of bias attributable to reasonable and right-minded informed persons at large not sustainable proposition when apprehension of bias not obvious at early stage to counsel themselves -- Charter, s. 11(f) excepting those tried by military tribunal from right to trial by jury -- Clearly recognizing existence of military justice system which is not displaced by civilian criminal courts at option of accused person -- National Defence Act, s. 273 not providing accused member of Armed Forces, when charged under National Defence Act with right to be tried in civilian court -- Finding of no serious issue should not be made merely because question of law novel and, in opinion of motions judge, has little likelihood of success -- When legal issue of questionable merit and absence of factual underpinning to which to apply legal question, serious issue not demonstrated -- Inability to recover costs not sufficient to meet irreparable harm test where costs incurred in ordinary course of litigation -- Kind of harm claimed by applicant not recognized as "irreparable harm" by Canadian courts so as to justify stay -- To obtain writ of prohibition or stay of proceedings, all three components of test set out in RJR McDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (serious issue, irreparable harm, balance of convenience) must be met -- Applicant not establishing serious issue, irreparable harm -- Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 11(f) -- National Defence Act, R.S.C., 1985, c. N-5, ss. 71 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 46), 273.