CORAM:
MCVEIGH J.A. LOCKE J.A. SCANLAN J.A.
BETWEEN:
SERGEANT R.D. KOHLSMITH
Appellant
and
HIS MAJESTY THE KING
Respondent
Heard at Ottawa, Ontario, on November 01, 2024.
Judgment delivered from the Bench at Ottawa, Ontario, on November 01, 2024.
REASONS FOR JUDGMENT BY:
THE COURT
CORAM:
MCVEIGH J.A. LOCKE J.A. SCANLAN J.A.
BETWEEN:
SERGEANT R.D. KOHLSMITH
Appellant
and
HIS MAJESTY THE KING
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Ontario, on November 01, 2024).
LOCKE J.A.
1Sergeant R.D. Kohlsmith appeals two decisions of the Standing Court Martial that found that his constitutional right to be tried within a reasonable time (pursuant to paragraph 11(b)of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11) was not violated in respect of a charge of sexual assault for which he was subsequently found guilty.
2For the following reasons, we have concluded that the appeal must be dismissed.
3Questions of violation of paragraph 11(b) of the Constitution Act, 1982 are determined based on the guidance of the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (Jordan). Jordan sets a presumptive ceiling beyond which delay is presumptively unreasonable. Jordan was not decided in a military context, but the military judge applied a presumptive ceiling of 18 months in this case, and Sergeant Kohlsmith does not take issue with that ceiling.
4The net delay for comparison to the presumptive ceiling is calculated by subtracting any defence delay from the total delay, which starts from the date of the charge to the actual or anticipated end date of trial. If the net delay exceeds the presumptive ceiling then the delay is presumptively unreasonable and the Crown bears the burden of establishing the presence of exceptional circumstances. If the Crown is unsuccessful in this regard, a stay of proceedings will follow (Jordan at para. 47). Exceptional circumstances lie outside the Crown's control in the sense that (i) they are reasonably unforeseen or reasonably unavoidable, and (ii) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise (Jordan at para. 69). Such circumstances need not be rare or entirely uncommon.
5If the net delay, taking into account any exceptional circumstances, falls below the presumptive ceiling, then the onus is on the defence to establish that (i) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (ii) the case took markedly longer than it reasonably should have. Stays of proceedings beneath the ceiling are expected to be rare and limited to clear cases (Jordan at para. 48).
6Deference is owed to a trial judge's underlying findings of fact. Characterizations of periods of delay and the ultimate decision concerning whether there has been unreasonable delay are reviewable on a standard of correctness: R. v. Pauls, 2020 ONCA 220, [2020] O.J. No. 1186 (QL) at para. 40, aff'd R. v. Yusuf, 2021 SCC 2, [2021] 1 S.C.R. 5 at paras. 2-3.
7In the first 11(b) decision under appeal, the delay was below the presumptive ceiling. The military judge dismissed Sergeant Kohlsmith's application for a stay of proceedings on the basis that he "failed to adduce any evidence demonstrating a sustained effort to expedite the proceedings." Sergeant Kohlsmith argues that the military judge erred in this respect by failing to consider that, at a March 4, 2021 scheduling conference, Sergeant Kohlsmith's counsel noted that paragraph 11(b) was an issue and that the issue had previously been raised with the prosecutor. Sergeant Kohlsmith also argues various other steps by which he demonstrated a sustained effort to expedite the proceedings. He argues that it was an error for the military judge to state that there was no such evidence.
8The military judge's conclusion on this issue is subject to review on the basis of a palpable and overriding error. We are not convinced that the military judge made any such error in finding no evidence demonstrating a sustained effort to expedite the proceedings. Though Sergeant Kohlsmith's counsel did claim to have raised the issue of delay with the prosecutor prior to the March 4, 2021 scheduling conference, there is no direct evidence in this regard. The military judge's silence on this point does not indicate that he ignored relevant evidence. Based on the military judge's analysis, we are not convinced that he erred in dismissing the first stay application.
9In the second 11(b) decision under appeal, the delay was above the presumptive ceiling. The charge was laid on April 2, 2020 and, at the time of the second 11(b) application, the anticipated end date of the trial was May 20, 2022. Thus, the total delay was 778 days. From this total, the military judge deducted defence delays in the amount of 161 days. These defence delays concerned the periods from October 1, 2021 to January 21, 2022 (from the original anticipated end of trial to the new anticipated end of trial following Sergeant Kohlsmith's request) and January 21, 2022 to March 11, 2022 (reflecting a second delay requested by Sergeant Kohlsmith). This left a net delay of 617 days, 69 days over the presumptive ceiling of 18 months (or 548 days). However, the military judge found that the delay in the anticipated end of trial from March 11, 2022 to May 20, 2022 (a period of 70 days) was the result of exceptional circumstances, such that the net delay was reduced to 547 days (one day below the presumptive ceiling).
10Sergeant Kohlsmith argues that the military judge erred in three respects in his second 11(b) decision: (i) finding that the Crown acted reasonably to mitigate the delay, (ii) characterizing the delay as exceptional, and (iii) including the period from February 21, 2022 to February 28, 2022 as part of the defence delay. We are not convinced that the military judge erred in respect of any of these conclusions.
11With regard to mitigation of the delay, Sergeant Kohlsmith argues that the military judge should have taken into account two applications filed by the Crown on December 14, 2021, shortly before the traditional holiday leave period that would be quickly followed by the trial, which was then expected to begin on January 10, 2022. One of the applications eventually required several days of trial time to complete, which Sergeant Kohlsmith argues would not have been necessary if it had been filed earlier.
12The military judge found that the parties later accepted to proceed with the trial commencing on February 28, 2022 sincerely believing that it could be completed by March 11, 2022, within the presumptive ceiling. He found that the additional delay was unforeseen and unexpected. On this factually suffused question, we see no reviewable error.
13In view of the unforeseen and unexpected nature of the delay from March 11, 2022 to May 20, 2022, we also see no error in the military judge's characterization of the delay as exceptional.
14With regard to the period from February 21, 2022 to February 28, 2022, Sergeant Kohlsmith notes that he was available to commence the trial at the earlier date, and the delay until the later date was due to the unavailability of the Crown. We see no error here by the military judge. A party who causes an adjournment is responsible for the entire period of delay until the matter can be rescheduled, unless the other party is unavailable for an unreasonable length of time: R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401 at para. 117.
15In conclusion, we conclude that the military judge made no reviewable error in either of his 11(b) decisions, and the present appeal must be dismissed.
"Glenny L. McVeigh"
J.A.
"George R. Locke"
J.A.
"J. Edward Scanlan"
J.A.
COURT MARTIAL APPEAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:
CMAC-643
STYLE OF CAUSE:
SERGEANT R.D. KOHLSMITH v. HIS MAJESTY THE KING
PLACE OF HEARING:
Ottawa, Ontario
DATE OF HEARING:
November 1, 2024
REASONS FOR JUDGMENT OF THE COURT BY:
MCVEIGH J.A. LOCKE J.A. SCANLAN J.A.
DELIVERED FROM THE BENCH BY:
LOCKE J.A.
DATED:
NOVEMBER 01, 2024
APPEARANCES:
Major Carlos Da Cruz Major Francesca Ferguson
For The Appellant
Lieutenant-Colonel Karl Lacharité Lieutenant-Commander Emmanuelle Léonard-Dufour
For The Respondent
SOLICITORS OF RECORD:
Defence Counsel Services Gatineau, Québec
For The Appellant
Canadian Military Prosecution Service Ottawa, Ontario
For The Respondent