T-2548-91
242 946 119 Master Corporal Christian Denault,
1st Battalion, Royal 22nd Regiment, Canadian
Forces Base Lahr, Federal Republic of Germany
(Applicant)
v.
Attorney General of Canada, Minister of National
Defence and Commander Canadian Forces in
Europe, Maj. Gen. B. L. Smith (Respondents)
INDEXED AS: DENAULT V. CANADA (MINISTER OF NATIONAL
DEFENCE) (TD.)
Trial Division, Dubé J.—Ottawa, October 10 and 22,
1991.
Armed forces — Trial for murder by court martial —Each of
three accused to be tried separately — Queen's Regulations
and Orders providing accused not tried together unless Minis
ter ordering joint trial — Accused seeking joint trial so that
prosecution unable to compel one to testify against one or
other of co-accused — Minister rejecting request on basis lack
ing authority to order joint trial as separate charges already
laid — Whether Charter rights infringed.
Constitutional law — Charter of Rights — Criminal process
— Trial for murder by court martial — Three soldiers sepa
rately charged — Seeking joint trial to prevent prosecution
from compelling co-accused to testify against each other —
Under Queen's Regulations and Orders, no joint trial unless
Minister ordering otherwise — Minister rejecting request as
separate charges already laid — Whether Commander's deci
sion to hold separate trials and Minister's denial of joint trial
infringing applicant's rights under Charter ss. 7, 11(c),(d) and
15 — Practice as to joint trials under QR & O and Criminal
Code contrasted — Separate trials infringing no Charter right
— Applicant protected against self-crimination by Charter, s.
13 but Charter not protecting against testimony of co-accused.
This was an application for prohibition to restrain the Com
mander, Canadian Forces in Europe, from holding separate tri
als of the accused and his two co-accused on a charge of first-
degree murder, and for an order directed against the Minister
and the Commander, by way of relief under section 24 of the
Canadian Charter of Rights and Freedoms, that provision be
made for a joint trial.
The applicant was arrested, on April 29, 1991, by Canadian
military authorities at CFB Lahr in Germany in connection
with a homicide. Two other soldiers had been arrested the day
before for the same offence. On June 20, 1991, the three
accused were arraigned separately to be tried by a general
court martial. On August 30, 1991, counsel for the applicant
learned there were to be three separate trials. He applied to the
Minister, asking that a joint trial be ordered. This request was
refused by letter dated October 3, 1991. Dates have been set
for the three trials, the first being October 30, 1991. One of the
co-accused is named on the Crown's witness list for the appli
cant's trial. The summary of that witness's evidence describes
events surrounding the alleged crime. The applicant argues that
separate trials permit the Crown to call the co-accused as wit
nesses against each other, and that requiring him to testify
about what he and the other soldiers may have done amounts to
self-crimination.
Held, the application should be dismissed.
The Queen's Regulations and Orders for the Canadian
Forces provide that "accused persons shall not be tried
together by court martial" unless the Minister orders that they
be charged and tried together. The Criminal Code, in para
graph 591(3)(b), empowers a court to order separate trials for
accused who have been indicted jointly. Such an order would
normally be given at the instance of an accused who wishes to
call a co-accused as an exculpatory witness, since the practice
under the Code is that persons jointly charged are jointly tried.
The Code provides for joinder of counts, but not for joint trials
of persons separately charged. At common law, a criminal trial
must proceed on a single indictment or information.
The mere fact of having separate trials does not infringe the
applicant's right to remain silent or the right not to have his
testimony used against him. The testimony of the accused at
the trial of any of the other accused cannot be used against him
at his own trial: Charter, section 13. What the applicant fears is
that the testimony of his co-accused will be used against him
but the Charter affords no protection against that.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, /982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 7, 11(c),(d), 13, 15, 24.
Criminal Code, R.S.C., 1985, c. C-46, ss. 235(1), 591 (as
am. by R.S.C., 1985 (1st Supp.), c. 27, s. 119).
National Defence Act, R.S.C., 1985, c. N-5, s. 70.
Queen's Regulations and Orders for the Canadian
Forces, s. 101.09.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Mazur (1986), 27 C.C.C. (3d) 359; 26 C.R.R. 113
(B.C.C.A.); leave to appeal refused [1986] 1 S.C.R. xi;
(1986), 27 C.C.C. (3d) 359n; 26 C.R.R. 133n.
CONSIDERED:
R. v. Weir (No. 4) (1899), 3 C.C.C. 351 (Qué. Q.B.); Phil-
lips and Phillips v. The Queen, [1983] 2 S.C.R. 161;
(1983), 50 N.B.R. (2d) 81; 3 D.L.R. (4th) 352; 131 A.P.R.
81; 8 C.C.C. (3d) 118; 35 C.R. (3d) 193; 48 N.R. 372.
REFERRED TO:
Regina v. Crooks (1982), 39 O.R. (2d) 193; 143 D.L.R.
(3d) 601; 2 C.C.C. (3d) 57; 2 C.R.R. 124 (H.C.); R. c.
Miller, [1983] C.S.P. 1094 (Qué.); R. v. Zurlo (1990), 57
C.C.C. (3d) 407; 50 C.R.R. 357 (Que. C.A.); R. v. Hebert,
[1990] 2 S.C.R. 151; [1990] 5 W.W.R. 1; 47 B.C.L.R.
(2d) 1; 57 C.C.C. (3d) 1; 77 C.R. (3d) 145; 49 C.R.R.
114; 110 N.R. 1; Re Praisoody (1990), 50 C.R.R. 335
(Ont. H.C.).
COUNSEL:
LCoI D. Couture for applicant.
R. Morneau, Rosemarie Millar and LCoI M.
Crowe for respondents.
SOLICITORS:
Office of the Judge Advocate General, Ottawa,
for applicant.
Deputy Attorney General of Canada for respon
dent.
The following is the English version of the reasons
for order rendered by
DUBS J.: By this originating motion the applicant, a
soldier charged with first-degree murder, is applying
for a writ of prohibition ordering the Commander of
the Canadian Forces in Europe ("the Commander")
not to hold separate trials to try the applicant and two
other soldiers against whom the same charges have
been laid, namely Master Corporal Leclerc and Pri
vate Laflamme. The application also asks the Court
to make an order "in the nature of a remedy under
subsection 24(1) 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.) [R.S.C., 1985, Appendix II, No. 44]] directing
the Minister of National Defence ("the Minister")
and the Commander to take the necessary steps to
provide for a joint trial of the applicant and the other
two co-accused.
The essential facts of this application are the fol
lowing. On April 29, 1991 the applicant was appre
hended by the military authorities in Lahr, Germany
and imprisoned in the Canadian Forces Detention
Centre at that location in connection with the death of
Mr. William Bartholomew. The other two soldiers
mentioned above had been apprehended the day
before. On June 20, 1991 the three soldiers were
arraigned separately to be tried by general court mar
tial. On August 30, 1991 counsel for the applicant
was told that three separate trials would take place.
On September 6, 1991 counsel made an application
to the Associate Minister of National Defence ("the
Minister") asking that a joint charge and joint trial of
the three accused be ordered. In support of his appli
cation, counsel made the following arguments:
[TRANSLATION] a. the three accused were charged for the mur
der of Mr. Bartholomew on April 28, 1991, allegedly a con
certed act;
b. by proceeding in the manner indicated, the prosecution
secures the right to compel one or more accused to testify
against one or other of the co-accused, contrary to their funda
mental right to remain silent;
c. the prosecution has complete freedom to orchestrate the
order of the trials so as to favour the prosecution's interests to
the detriment of the rights of the accused against self-incrimi
nation;
d. the accused, including my client, could suffer serious
prejudice as a result of this procedure;
e. this approach is not in accordance with practice under the
Criminal Code of Canada, according to which individuals
charged with the same offence are tried together unless a judi
cial authority has decided otherwise;
f. the provisions of s. 101.09(2) of the Q.R.O.C.F. authorize
you to order that charges be laid jointly and the accused be
tried jointly, whether on application by the prosecution or the
defence;
g. the generally recognized rule regarding joint trials should be
followed and it should be left to the proper judicial authorities
to make the appropriate subsequent decisions, as is done in the
Canadian legal system; and
h. the holding of separate trials could result in inconsistent ver
dicts and inconsistent sentences, which certainly would not
serve the ends of justice.
In his application counsel referred to section
101.09 of the Queen's Regulations and Orders for the
Canadian Forces ("QR&O"), which reads:
101.09—JOINT TRIAL
(1) Except as provided in (2) of this article, accused persons
shall not be tried together by court martial.
(2) The Minister or an officer appointed by him for that pur
pose, may order that any number of accused persons be
charged jointly and tried together by court martial for an
offence alleged to have been committed by them collectively.
(3) When, in pursuance of an order made under (2) of this arti
cle, a court martial is convened to try persons charged jointly,
an accused person may apply to the authority who convened
the court martial to be tried separately, on the ground that the
evidence of one or more of the accused persons whom it is
proposed to try with him will be material to his defence. If the
authority to whom application is made is satisfied that the
application is well founded, he shall convene a separate court
martial for the trial of the applicant. [My emphasis.]
By a letter dated October 3, 1991, the Minister
rejected the request. She cited subsection 101.09(2)
above and concluded from this that, as the three
accused had been charged separately "before you
made your application for a joint trial", she did not
now have the authority to order that the three be tried
together. The two relevant paragraphs of the Minis
ter's letter are as follows:
[TRANSLATION] 3. I know that the military authorities charged
your client with murder separately before you made your
application for a joint trial. Accordingly, I consider that the
exception to this rule of separate trials does not apply in the
circumstances, since s. 101.09(2) of the Q.R.O.C.F. pertains to
a situation in which a party is seeking to obtain a type of
charge and of trial by ministerial order when charges have not
yet been laid.
4. Since I do not have the authority to make the ministerial
order in question, I think there is no point in my commenting
on the validity of the arguments you make in your application
for a joint trial, and it would even be improper for me to do so.
Under sections 111.06 and 111.07 of the QR&O, it
is for the Commander to determine how general
courts martial shall be held. Dates have already been
set for the three trials, the first being that of the appli
cant which is set for October 30, 1991. It appears
from the additional summary of the evidence to be
submitted at the applicant's trial that one of the three
accused, Master Corporal Leclerc, is on the list of
witnesses to be called. The summary of Master Cor
poral Leclerc's testimony describes the events sur
rounding the alleged murder of the victim William
Bartholomew at the hands of the three accused.
Clearly, if such evidence is admitted at the appli
cant's trial it could have a considerable effect on the
outcome of the case.
It should be noted at the outset that counsel for the
applicant is not challenging the constitutionality of
section 101.09 above, to the effect that in general
accused persons are not tried together by a court mar
tial. His argument is that the Commander's decision
to proceed with three separate trials and that of the
Minister to reject the application for a joint trial are
in the circumstances of the case an infringement of
the rights guaranteed to the applicant and the co-
accused under sections 7, 1 1(c),(d) and 15 of the
Charter.
The applicant admitted that the prosecution enjoys
certain prerogatives, such as decisions to select
charges, the method of procedure and so on, but those
prerogatives should not be exercised in a way calcu
lated to secure an unfair advantage for the prosecu
tion. Counsel alleged that according to well-estab
lished practice in civilian courts of criminal
jurisdiction, persons facing the same charge in
respect of a concerted enterprise will be tried together
unless an order for a separate trial is made pursuant
to section 591 of the Criminal Code [R.S.C., 1985, c.
C-46 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s.
119)]. He submitted that Canadian soldiers should
benefit from the complete range of rights enjoyed by
other Canadian citizens. This is particularly true in
the case at bar, he said, in which the alleged offence
is not typically military in nature but civilian, con
trary to subsection 235(1) of the Criminal Code, and
would not have been subject to military law had it not
been for the fact that it was allegedly committed
outside Canada, as can be seen from section 70 of the
National Defence Act. 1
1 R.S.C., 1985, c. N-5.
Counsel particularly stressed the applicant's right
to remain silent, an integral part of the rules of funda
mental justice contained in section 7 of the Charter.
Although the applicant's trial is to be the first of the
three, the fact remains that the prosecution has con
trol over the order of the trials, could change this
order and the applicant could do nothing about it. If
such a decision were to be taken and the trial of one
of the co-accused took place before that of the appli
cant, the latter would be a compellable witness in the
proceedings of the co-accused in question. The appli
cant would then be required to testify on the same
facts in support of the charge laid against him,
although his trial was still to come.
Section 7 of the Charter guarantees everyone the
right to life, liberty and security of the person. Para
graph 11(c) gives any person charged with an offence
the right not to be compelled to be a witness against
himself and paragraph 11(d) the right to be presumed
innocent until proven guilty. Section 15 provides that
every individual is equal before and under the law
and has a right to the equal protection and equal ben
efit of the law without discrimination.
Clearly, the applicant enjoys the protection of sec
tion 13 of the Charter, which states that he has the
right not to have any incriminating evidence given by
him in any proceedings used to incriminate him in
any other proceedings. In actual fact, counsel alleged,
the information disclosed by him could cause great
damage to his future defence, providing the prosecu
tion with information to which it would not have had
access without his testimony. As the charges are
identical and the prosecution evidence almost identi
cal against each of the three accused, the fact of com
pelling the applicant to testify against one or other of
the co-accused amounts to compelling him to testify
against himself.
Furthermore, even if the applicant's trial was held
first, the latter would still be obliged to testify at the
trial of each of the other two accused and, again in
the submission of his counsel, would once more be
deprived of his right to remain silent under section 7
of the Charter. If the applicant were compelled to tes
tify in another trial on the same facts as the charge
laid against him, the possibility of new evidence
presented to the Court of Appeal, the possibility that
the authorities could review the appellant's testimony
and obtain additional evidence, and finally, the possi
bility of an order for a new trial are all factors which
indicate how the applicant's rights would be
infringed, according to counsel for the applicant.
The same arguments apply in support of identical
applications by the other two co-accused.
To begin with, there is no provision like section
101.09 in the Criminal Code. On the contrary, para
graph 591(3)(b) provides that where it is satisfied that
the interests of justice so require and there is more
than one accused or defendant, the Court may order
that one or more of them be tried separately, which
suggests that the general rule is that several persons
charged on the same indictment are to be tried
jointly, contrary to section 101.09. Further, a Quebec
Superior Court case dating from 1899, filed by the
applicant, appears to confirm this conclusion. 2 It will
suffice for me to quote this passage from Würtele J.
(at page 352):
When several persons are indicted jointly, the Crown always
has the option to try them either together or separately; but the
defendants cannot demand as a matter of right to be tried sepa
rately.
Upon good ground being shown, however, for a severance,
the presiding judge may, in his discretion, grant them separate
trials.
The general rule is that persons jointly indicted should be
jointly tried; but when in any particular instance this would
work an injustice to any of such joint defendants the presiding
judge should on due cause being shown permit a severance and
allow separate trials.
Indeed, according to the submissions of one of the
counsel for the applicant, in general persons accused
in criminal cases are more likely to ask to be tried
separately since they regard this as greater protection.
From this standpoint, section 101.09 favours the
accused person. As to the application before
Würtele J., the accused had asked to be tried sepa
rately and he dismissed their application on the
ground that they had not shown that a joint trial
would cause them any detriment.
2 R. v. Weir (No. 4) (1899), 3 C.C.C. 351 (Qué Q.B).
The rule of practice in the Criminal Code is thus
that persons charged jointly should be tried jointly.
That is not the situation in the case at bar. The three
applicants at bar were not charged jointly, but sepa
rately. Further, the basic rule in a court martial is that,
in principle, the accused are not tried together, unless
this is ordered by the Minister.
The Criminal Code sets out an elaborate procedure
applicable to the joinder of counts, but no procedure
of the kind is to be found for joint trials of more than
one accused. In Phillips and Phillips v. The Queen, 3
the Supreme Court of Canada held conclusively (at
page 171) that at common law a criminal trial must
proceed on a single indictment or information.
Accordingly, Parliament must legislate if it wishes a
single trial to deal with several indictments:
Throughout the Code, reference is made to trial on the indict
ment or the information. Even the provisions in relation to
multiple counts and severance indicate that a trial is to proceed
on one indictment or information. If it had been contemplated
by Parliament that more than one information or indictment
could be tried at the same time, these provisions for joinder or
severance would have been unnecessary.
A trial judge thus has no jurisdiction to hear sepa
rate indictments or informations together. However,
McIntyre J., who delivered the Supreme Court's
judgment in Phillips, concluded that where there are
separate informations or indictments that should have
been charged jointly, it is open to the trial judge in
his discretion to permit the amendment of one indict
ment or information to include the accused or
charges from another indictment or information.
In Mazur 4 the British Columbia Court of Appeal
held that this latter part of McIntyre J.'s judgment
was obiter dicta and is limited to the injustice that
could result from a joint trial of two accused on sepa-
3 [1983] 2 S.C.R. 161.
4 R. v. Mazur (1986), 27 C.C.C. (3d) 359 (B.C.C.A.); leave
to appeal denied by the Supreme Court of Canada on May 20,
1986 [[1986] 1 S.C.R. xi].
rate indictments. It does not in any way apply to sep
arate trials on separate indictments, as in the case at
bar. That Court of Appeal further held that a Provin
cial Court judge did not have jurisdiction to amend
the indictment so as to add a co-accused if the Crown
objected.
In the case at bar, the applicant and the other two
soldiers in question were arraigned separately and the
Commander decided to hold separate trials. The Min
ister subsequently exercised her discretion and
decided not to reverse that decision.
At the hearing counsel for the applicant referred to
the case law 5 under the Canadian Charter of Rights
and Freedoms to show that imposition of a separate
trial would infringe his "right to remain silent". In
my opinion, the mere fact of having separate trials
does not infringe any of the rights conferred by the
Charter. Additionally, requiring a co-accused to tes
tify at the trial of another co-accused could possibly
infringe the witness' rights; under section 13 of the
Charter, everyone has the right not to have his testi
mony in a trial used against him. If that protection is
infringed, the person affected can assert his rights at
the proper time and place.
The threat of an infringement which the applicant
fears at this stage is not really that his own testimony
will be used against him, but that the testimony of the
other two accused will be used against him. The
Charter does not protect an accused against the testi
mony of his co-accused.
Further, the application at bar does not ask that the
co-accused not be heard in evidence against the other
co-accused. The application asks the Court to pro
hibit the Commander from holding separate trials, or
to instruct the Minister to order a joint trial. For the
reasons mentioned, I cannot allow such an applica
tion.
The application is accordingly dismissed.
5 Regina v. Crooks (1982), 39 O.R. (2d) 193 (H.C.); R. c.
Miller, [1983] C.S.P. 1094 (Qué.); R. v. Mazur, No. 4, ibid.; R.
v. Zurlo (1990), 57 C.C.C. (3d) 407 (Que. C.A.); R. v. Hebert,
[1990] 2 S.C.R. 151; Re Praisoody (1990), 50 C.R.R. 335
(Ont. H.C.).
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.