Date: 20211112

Docket: CMAC-610

Citation: 2021 CMAC 7

Present: BELL C.J.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant/Responding Party

and

CORPORAL K.L. CHRISTMAS

Respondent/Moving Party

Motion determined on the basis of written submissions filed by the Moving Party on the 7^th^ day of October, 2021 and by the Responding Party on the 22^nd^ day of October, 2021.

Order delivered at Ottawa, Ontario, on November 12, 2021.

REASONS FOR ORDER BY:

CHIEF JUSTICE BELL

Date: 20211112

Docket: CMAC-610

Citation: 2021 CMAC 7

Present: BELL C.J.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant/Responding Party

and

CORPORAL K.L. CHRISTMAS

Respondent/Moving Party

REASONS FOR ORDER AND ORDER

CHIEF JUSTICE BELL

I. Overview

1By way of Notice of Motion filed on the October 7, 2021, the Respondent Corporal K.L. Christmas requests this Court "re-impose the stay of proceedings until the matter of R. v. Edwards, et al has been disposed of conclusively". For the following reasons, I dismiss the motion and refuse to reinstate the stay of proceedings which was originally granted on January 26, 2021 and lifted on July 26, 2021.

II. Background and Procedural Steps undertaken to date

2On March 17, 2019 an incident occurred at the Truro Armouries in Truro, Nova Scotia. As a result of that incident some charges were initially laid by way of a Record of Disciplinary Proceedings on June 25, 2019.

3On February 21, 2020 the charge sheet was signed by a representative of the Director of Military Prosecutions (DMP) pursuant to art. 110.06(4) of the Queen's Regulations and Orders (QR&O) and on March 2, 2020 the DMP preferred, pursuant to ss. 165 and 165.12 of the NDA and art. 110.01 of the QR&O. Corporal Christmas was charged with the offences of sexual assault under s. 130 of the National Defence Act, RSC 1985, c N-5 (NDA) pursuant to s. 271 of the Criminal Code of Canada, RSC 1985, c C-46 (Criminal Code); disgraceful conduct under s. 93 of the NDA; and drunkenness under s. 97 of the NDA.

4On November 10, 2020, Military Judge d'Auteuil concluded Her Majesty the Queen had violated Corporal Christmas's right to be tried by an independent and impartial tribunal pursuant to s. 11(d) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11 (Charter) and ordered a stay of proceedings. The charges are serious, and, in the event of successful appellate review of the military judge's November 10, 2020 decision, should be tried on their merits.

5Similar stay orders were issued by military judges in R. v. Edwards, 2020 CM 3006; R. c. Crépeau, 2020 CM 3007; R. c. Fontaine, 2020 CM 3008; R. v. Iredale, 2020 CM 4011; R. v. Proulx, 2020 CM 4012; R.v. Cloutier, 2020 CM 4013. On January 29, 2021 this Court heard the appeals in Edwards, Crépeau, Fontaine and Iredale. By January 8, 2021 counsel for each of the Respondents in Proulx, Cloutier and Christmas had agreed to joinder of their appeals. On January 12, 2021, I ordered a case management conference be held in the appeals concerning Proulx, Cloutier and Christmas.

6Following a case management conference held on January 19, 2021, I ordered expedited hearings of the appeals involving Cloutier and Proulx, severed the Crown appeal involving Corporal Christmas from the previous joinder order and adjourned Christmas sine die. The adjournment of Christmas arose from circumstances beyond the control of any of the parties involved in the litigation. Furthermore, it appeared to be in the interests of justice given that the singular issue upon which the stay had been granted in Christmas, was common to the Edwards, Crépeau, Fontaine, Iredale, Proulx, and Cloutier appeals. Justice delayed on the other matters would have constituted justice denied. It was not in the interests of justice that the appeal involving Corporal Christmas delay other proceedings involving the exact same issue.

7On June 11, 2021 this Court rendered its unanimous decision in R. v. Edwards; R. v. Crépeau; R. v. Fontaine; R. v. Iredale, 2021 CMAC 2 allowing the Crown appeal and ordering the trials to proceed. On June 17, 2021 this Court rendered its unanimous decision in R. v. Proulx; R. v. Cloutier, 2021 CMAC 3 again dismissing the appeals and ordering those trials to proceed.

8This Court, following the release of the reasons in Edwards et al and Proulx et al, on motion by the Crown, lifted the stay in the within appeal on July 26, 2021.

9On September 10, 2021, the respondents in Edwards et al sought leave to appeal to the Supreme Court of Canada. As a result of that leave application, Corporal Christmas brings the within motion to "re-impose" the stay of proceedings.

III. Analysis

10There have been significant delays in this matter already afforded at the expense of the timely delivery of justice. An application for leave to appeal to the Supreme Court of Canada is not intended to freeze the wheels of justice. Indeed, our legal system seeks to prevent unnecessary delays where possible. The Supreme Court must still decide upon the leave application and, should it allow the application, it must then hold a hearing and then deliberate prior to rendering a decision on the appeal.

11The reasons for the original stay imposed in this matter are no longer relevant. Whatever the outcome of a hearing of this matter on its merits before this Court, it is in the interests of all, including the interests of the administration of justice, that an outcome be provided expeditiously. The parties will then proceed accordingly from there.

12For the above reasons :

IT IS ORDERED THAT the motion to reinstate the stay of proceedings is dismissed.

"B. Richard Bell"

Chief Justice

COURT MARTIAL APPEAL COURT OF CANADA

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:

CMAC-610

STYLE OF CAUSE:

HER MAJESTY THE QUEEN v. CORPORAL K.L. CHRISTMAS

DEALT WITH IN PERSON WITHOUT APPEARANCE OF THE PARTIES

REASONS FOR ORDER AND ORDER BY:

CHIEF JUSTICE BELL

DATED:

november 12, 2021