Court Martial Appeal Court

Decision Information

Decision Content

C.M.A.C. 372

 

CORAM: HART J.A.

HUGESSEN J.A.

BROOKE J.A.

 

 

BETWEEN:

 

ELVIN KYLE BROWN

 

Appellant

 

and

 

HER MAJESTY THE QUEEN

 

Respondent

 

 

 

Heard at Ottawa, Ontario

Tuesday and Wednesday, November 22

And 23, 1994

 

Judgment rendered at Ottawa, Ontario,

Friday, January 6, 1995.

 

 

 

REASONS FOR JUDGMENT BY:

HUGESSEN J.A.

 

CONCURRED IN BY: HART J.A.

BROOKE J.A.


 

 

 

C.M.A.C. 372

 

CORAM: LE JUGE HART

LE JUGE HUGESSEN

LEJUGE BROOKE

 

 

ENTRE :

 

ELVIN KYLE BROWN

 

Appelant

 

et

 

SA MAJESTÉ LA REINE

 

Intimée

 

 

 

Audience tenue à Ottawa (Ontario),

Mardi et mercredi, le 122 et 23 novembre,

1994

 

Jugement rendu à Ottawa (Ontario),

Vendredi le 6 janvier 1995.

 

 

 

MOTIFS DU JUGEMENT PAR :

LE JUGE NHUGESSEN

 

Y ONT SOUSCRIT : LE JUGE HART

LE JUGE BROOKE

 


C.M.A.C. 372

 

CORAM HART J.A.

HUGESSEN J.A.

BROOKE J.A.

 

 

BETWEEN:

 

ELVIN KYLE BROWN

 

Appellant

 

AND:

 

HER MAJESTY THE QUEEN

 

Respondent

 

 

 

REASONS FOR JUDGMENT

 

HUGESSEN J.A.

 

Introduction

 

 

Elvin Kyle Brown appeals his conviction by a General Court Martial on one count of manslaughter (as an included offence to a charge of murder) and one count of torture. The Crown seeks leave, and if leave is granted, to appeal the sentence of five years' imprisonment imposed by the General Court Martial.

 

The Facts

As will appear below, the accused's appeal does not put in issue the correctness or reasonableness of the finding of guilt. Since a number of other charges were laid against other members of the Forces arising out of the same incident and, as we were informed, all of the resulting courts martial have given rise to appeals to this Court, it seems advisable at this stage to say no more about the facts than is strictly necessary to dispose of the issues raised on this appeal. The following summary is accordingly limited to the very barest outline of the evidence, which occupies several volumes of transcript.

The accused was a member of number 2 Commando, posted to peacekeeping duties near the town of Belet Huen in Somalia in the early months of 1993. By March 16, 1993, the Canadian Forces in Belet Huen had encountered a number of problems with Somalis, mostly young men, breaking into their compounds and stealing. As a result, orders were given for increased security and, in particular, on March 16, 1993, for patrols which would attempt to capture the infiltrators. There was evidence that such orders included a licence to "abuse" or "rough-up" prisoners, at least while in the process of capturing them. On the night of March 16, 1993, the appellant's section was assigned to guard and sentry duty in the compound of number 2 Commando. The appellant's section commander was Sergeant Boland. His section 2 I/C was Master Corporal Matchee, who was the appellant's immediate superior.

Shortly after 9:00 p.m. on March 16, 1993, a 16-year-old Somali male was captured while attempting to infiltrate one of the Canadian compounds and was placed in the custody of the appellant's section. Over the course of the ensuing two and a half to three hours, the prisoner was severely and brutally beaten. By shortly after midnight, he was dead.

The evidence indicated that most of the beating was administered by Matchee. Matchee was charged but, because of a suicide attempt very shortly after the incident, was and is unfit to stand trial and unable to testify. The appellant was present during much but not all of the beating. Other soldiers were also present from time to time while the beating was taking place. The appellant admitted that, at an early stage in the prisoner's ordeal, he had punched him once in the jaw and kicked him twice in the leg. At Matchee's request, the appellant took photographs of Matchee and the prisoner; he also himself posed for two photographs taken by Matchee of him and the prisoner. The photographs leave no room for doubt that the prisoner had, at that time, suffered a very severe beating. There was evidence from other soldiers who visited the bunker where the beating took place that the appellant appeared calm or bored or as if "he didn't want to be there." Matchee, on the other hand, appeared "pumped up." Matchee spoke frequently and expressed satisfaction at what was happening; not so the appellant who appeared, to at least some witnesses, as "upset" or "shocked." There was evidence that the appellant did not like Matchee and was scared of him. Matchee was a violent person with a quick temper and had apparently been drinking that night.

The exact cause of the prisoner's death was never determined since no autopsy was performed. Medical evidence called by the Crown, based on photographs and the descriptions of the beating, was to the effect that death was probably caused by brain swelling resulting from the cumulative effect of blows to the head. Lacerations on the deceased's face were probably caused by blows with a fist and such blows may have had a concussive effect contributing to the victim's death.

As indicated, the General Court Martial found the appellant not guilty of the charge of murder but guilty of the included offence of manslaughter. It also found him guilty of torture.

 

The appeal against conviction

 

In his grounds of appeal and in his argument to this Court, the appellant does not contest the reasonableness or the correctness of the finding of guilt. Of the six grounds of appeal which were argued, we did not require to hear from the respondent on three; those grounds related to the admissibility of certain expert medical evidence and to two aspects of the Judge Advocate's instructions to the Court regarding, respectively, the extent of the accused's duty and the unavailability of a defence of reliance on superior orders. The three remaining grounds of appeal on which we did call upon the respondent relate respectively to the alleged breach of the accused's rights under section 11 of the Charter, an alleged reasonable apprehension of bias on the part of the commanding officer who signed the charge sheet and an alleged error on the part of the Judge Advocate in refusing evidence of a hearsay statement made by Matchee. I shall deal with each of them in turn.

 

Section 11 Charter rights

The appellant asserts that his trial by General Court Martial for crimes which constitute offences under the Criminal Code of Canada[1] and which could have been tried by a civil court in Canada constitutes an infringement of his rights under paragraphs 11(d) and (f):

11. Any person charged with an offence has the right

 

.

 

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

 

.

 

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

 

The argument breaks down into two subheadings. First, as I understand the appellant's position, he argues that the exception for offences under military law in paragraph 11(f) must be narrowly construed so as to restrict it to cases which must, of necessity, be tried by a court martial, i.e., cases in which no civilian court in Canada has

jurisdiction and the exigencies of military service require that the trial take place outside of Canada. Here, section 273 of the National Defence Act[2] specifically gives jurisdiction to Canadian civil courts and, since the trial in fact took place in Canada, it was clearly not necessary that it be held elsewhere.

 

Second, the appellant suggests that the possibility that the Court Martial can reach a verdict by a simple majority of its members breaches the presumption of innocence guaranteed by paragraph 11(d).

In my view, both branches of the argument must fail as being inconsistent and incompatible with recent decisions both of this Court and of the Supreme Court of Canada.

It is now well settled that the exception to the guarantee of the right to a jury trial in paragraph 11(f) is triggered by the existence of a military nexus with the crime charged. That requirement was first authoritatively articulated by McIntyre J. in the pre-Charter case of MacKay v. The Queen[3]:

The question then arises: how is a line to be drawn separating the service-related or military offence from the offence which has no necessary connection with the service? In my view, an offence which would be an offence at civil law, when committed by a civilian, is as well an offence falling within the jurisdiction of the courts martial

and within the purview of military law when committed by a serviceman if such offence is so connected with the service in its nature, and in the circumstances of its commission, that it would tend to affect the general standard of discipline and efficiency of the service. I do not consider it wise or possible to catalogue the offences which could fall into this category or try to describe them in their precise nature and detail. The question of jurisdiction to deal with such offences would have to be determined on a case-by-case basis. A serviceman charged in a service court who wished to challenge the jurisdiction of the military court on this basis could do so on a preliminary motion. It seems, by way of illustration, that a case of criminal negligence, causing death resulting from the operation of a military vehicle by a serviceman in the course of his duty, would come within the jurisdiction of the court martial, while the same accident, occurring while the serviceman was driving his own vehicle on leave and away from his military base or any other military establishment, would clearly not. It may be observed that, on an admittedly different constitutional basis, this approach has been taken in American courts where a possible conflict of jurisdiction had arisen between the military tribunals and the civil Courts.

[At pages 161-162.]

 

[Emphasis added.]

 

After the coming into force of the Charter the requirement was adopted and elaborated for the purposes of paragraph 11(f) of the Charter by this Court. In MacDonald v. The Queen,[4] Mahoney C.J., speaking for the Court, said:

An offence that has a real military nexus and falls within the letter of subsection 120(1) of the National Defence Act is an offence under military law as that term is used in paragraph 11(f) of the Charter of Rights.

[At page 283.]

 

 

The reference to the former subsection 120(1) is now to subsection 130(1), the text of which reads:

130. (1) An act or omission

 

 

(a) that takes place in Canada and is punishable under Part XII of this Act, the Criminal Code or any other Act of Parliament, or

 

(b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part XII of this Act, the Criminal Code or any other Act of Parliament,

 

is an offence under this Part and every person convicted thereof is liable to suffer punishment as provided in sub- section (2).

130. (1) Constitue une infraction à la présente partie tout acte ou omission :

 

a) survenu au Canada et punissable sous le régime de la partie XII de la présente loi, du Code Criminel ou de toute autre loi fédérale;

 

b) survenu à l'étranger mais qui serait punissable, au Canada, sous le régime de la partie XII de la présente loi, du Code criminel ou de toute autre loi fédérale.

 

Quiconque en est déclaré coupable encourt la peine prévue au paragraphe (2).

 

 

 

 

Manifestly, the offences of which the appellant was convicted fall within the letter of paragraph 130(1)(b).

Likewise, in Donald Joseph Sullivan v. The Queen,[5] Brooke J.A., speaking for the Court, said:

While Parliament has taken away the jurisdiction of the military court to try some offences against the person, it has not disturbed the jurisdiction to try other offences which have a real military nexus or service connection.

[At page 422.]

 

 

In William Kenneth Johnson v. The Queen,[6] the accused was charged with possession of a narcotic while driving his own vehicle in civilian clothes off-duty and off-base. There was no connection between the crime charged and any other member of the Forces. The accused's objection to the jurisdiction of a court martial to try him was dismissed on the basis of the test of military nexus. His appeal to this Court was dismissed by a majority, the dissenting member holding that the prosecution had failed to establish a military nexus. An appeal to the Supreme Court[7] was dismissed on the grounds that the majority of this Court had not erred.

The Supreme Court of Canada returned, at least inferentially, to the question in R. v. Généreux,[8] where the Chief Justice, speaking for the Court, said:

The appellant concedes that a separate system of military law, along with a distinct regime of service tribunals to apply this law, is consistent with s. 11(d) of the Charter. He agrees it is necessary that military discipline be enforced effectively and speedily by tribunals whose members are associated with the military and therefore sensitive to its basic concerns. At the same time, he submits that, within the inherent limits of an institution having the power to discipline its own members, the adjudicative or disciplinary body must meet the standards of independence and impartiality required by s. 11(d). The General Court Martial, in his view, fails this test.

 

I agree that this issue gives rise to two distinct questions. First, is a parallel system of military tribunals, staffed by members of the military who are aware of and sensitive to military concerns, by its very nature inconsistent with s. 11(d) of the Charter? Secondly, if the first question is answered in the negative, is the General Court Martial, as constituted at the time of the trial under the National Defence Act and regulations, an independent tribunal for the purposes of s. 11(d)? The appellant correctly, in my opinion, concedes that the answer to the first question is no.

[At page 21.]

 

[Emphasis added.]

And again:

 

In my opinion the Charter was not intended to undermine the existence of self-disciplinary organizations such as, for example, the Canadian Armed Forces and the R.C.M.P. The existence of a parallel system of military law and tribunals, for the purpose of enforcing discipline in the military, is deeply entrenched in our history and is supported by the compelling principles discussed above.

 

[At page 27.]

 

 

Since the appellant concedes that there was ample military nexus in the present case (indeed he could scarcely do otherwise) this submission must fail.

As far as concerns the guaranteed presumption of innocence enshrined in paragraph 11(d), the jurisprudence of this Court is clear that such guarantee is not infringed by the absence of a requirement of unanimity to support a court martial's findings.

There can, of course, be no question that the presumption of innocence applies to courts martial and that the members of the court, when they reach their conclusion, are required to ask themselves if they are satisfied beyond reasonable doubt as to the guilt of the accused.

Whatever may be the constitutional position with regard to the requirement of unanimity in a jury verdict, and whether or not such requirement is Charter protected, it is clear that a court martial is not a jury and that its role and function are different from those of a jury. In Lunn v. The Queen,[9] Mahoney C.J., for the Court, said:

A Disciplinary Court Martial does share characteristics of a civilian criminal jury trial; the members are the sole judges of fact and must accept the instruction of the judge advocate as to the law. It is also very different in many respects. For example, as will appear, the members may take judicial notice of matters peculiar to their community to a generous extent not permitted jurors; they find guilt or acquit by majority vote and they, not the judge advocate, pass sentence. When the right to trial by jury is spoken of, it is trite to say that one is entitled to be found guilty by a jury of one's peers. Members of courts martial are historically commissioned officers; those they try are not necessarily their peers. It would be sterile to attempt an exhaustive catalogue of the similarities and dissimilarities. Courts martial are sui generis. Trial by Disciplinary Court Martial is not, in the military context, intended to be, nor is it, tantamount to trial by jury in the civilian context.

 

[At page 164]

 

(Although the Chief Justice's remarks were specifically directed to disciplinary courts martial, there can be no valid distinction made for these purposes between disciplinary and general courts martial. Indeed, it would appear that historically the institution of the court martial, quite unlike the institution of the jury, has always spoken by a majority voice.)

In R. v. Généreux, supra, the question of the Charter adequacy of a majority verdict in courts martial was raised by the appellant in this Court[10] and was unanimously dismissed from the bench. The reasons for judgment of Décary J.A., dissenting on other grounds, make this plain:

The appellant put forward six grounds of appeal at the hearing: the independence of the tribunal and the rules of fundamental justice, equality before the law, the illegality of a search made at his residence, the denial of a stay, admission of expert testimony and the constitutionality of a verdict by majority vote.

 

The Court dismissed the last five grounds from the bench and invited counsel for the respondent to plead only on the first ground. The last three grounds were manifestly without foundation.

[At page 55.]

 

[Emphasis added.]

 

When the case reached the Supreme Court of Canada, the matter of majority verdicts was the subject of specific and not unfavourable comment:

A General Court Martial may consist of not less than five and not more than nine members (s. 167 of the Act and s. 111.18, Q.R. & O.). The members of the court martial are effectively the triers of fact. They determine, by majority vote, the guilt or innocence of the accused. The members also, unlike a jury in an ordinary court of law, determine the sentence in the event that the accused is found guilty (s. 192 of the Act).

[At pages 29-30.]

 

More recently still, the matter came up again in this Court in Deneault v. The Queen,[11] where Létourneau J.A., speaking for the Court, said:

Indeed, jury trials are expressly excluded in military law by paragraph 11(f) of the Charter. Undoubtedly, this explains why an allegation that a decision of the General Court Martial is unconstitutional when taken by majority decision, was summarily dismissed by this Court in R. v. Généreux as being manifestly without foundation. Section 192 of the Act expressly provides that the finding and sentence of a court martial shall be determined by a vote of the majority of the Court members. Consequently, that provision ensures that the unanimity rule in jury trials does not apply. Similarly, decisions before British military courts have, from early times, been taken according to a plurality of votes with a statutory quorum in the case of capital crimes. The majority rule also applies before the military courts of the United States, Australia and New Zealand to name but a few jurisdictions. Therefore, there is no requirement for the sequestration of the members of the General Court Martial and no need for a unanimous verdict as in jury trials.

[At page 9]

 

I conclude accordingly that the appellant's Charter arguments cannot be sustained.

 

Reasonable apprehension of bias on the part of the commanding officer

 

This ground of appeal is based on the admitted fact that the appellant's commanding officer, who signed the charge sheet and referred the matter to higher authority, took legal advice from officers in the Judge Advocate General's department who also, then and later, had responsibility for prosecuting the appellant and some of the

other persons accused in this matter. The appellant argues that the commanding officer's function in signing the charge sheet is quasi-judicial in nature and that he is accordingly required both to be and appear to be unbiased.

In my view this submission is entirely without merit. It misapprehends the nature of the role of a commanding officer who signs a charge sheet and then refers the matter to higher authority. Contrary to the situation where the commanding officer decides himself to dispose of a matter summarily, there is nothing judicial or quasi-judicial in the commanding officer's decision here. His function, like that of the convening authority to whom he refers the case, is wholly administrative in nature and there is no requirement that he act judicially. In The Queen v. Johnstone,[12] Brooke J.A., for the Court, after examining the whole scheme of the legislation, said:

The legislative scheme being considered here is analogous to the preferring of an indictment in a criminal trial.

 

[At page 6]

 

and again:

 

Having regard to the scheme of the legislation, steps taken by a convening authority to ensure that an accused is tried as directed, such as issuing a convening order, revoking or varying it, and issuing a fresh one are administrative in nature.

[At page 179]

 

Likewise, in v. The Queen, supra, Mahoney C.J. said:

 

Persons making decisions relative to the laying and prosecution of charges must act according to the law but the law does not require their independence or impartiality. What is required of them is that they not act in a manner that may be seen, by a reasonable and informed person, as drawing the administration of justice into disrepute.

In my opinion, the existence and exercise of discretion by a convening authority to order a particular mode of court martial do not engage rights of the accused protected under sections 7, 11(d) or 15(1) of the Charter. Should, in a particular case, it be established that the discretion has been exercised for an improper purpose or motive, no doubt a remedy under section 24 can be devised.

 

[At page 7]

 

The appellant places reliance on Nye v. The Queen.[13] That was a very different case and did not deal with any appearance of partiality on the part of the commanding officer; the issue in Nye was the interference in the commanding officer's exercise of discretion by a higher ranking officer who had come from headquarters for the purpose. It gives no comfort to the appellant.

 

The judge advocate's failure to admit the alleged hearsay statements made by Matchee to the witness Brocklebank.

 

This matter arose during the examination-in-chief of a Crown witness, Private Brocklebank. Brocklebank was a member of the same section as Matchee and the accused and was also himself facing charges arising out of the incident. Brocklebank testified to having been present during the session while Matchee and the accused were photographed with the prisoner. The following series of question and answers then took

place:

Q. So Private Brown kitted up, got his webbing on, what did he do then? A. He left the bunker, sir.

 

Q. Do you know where he went? A. No, sir.

 

Q. OK. What happened next? A. At that time, I had asked Master Corporal Matchee, anybody had seen this, and he said laughing, he said, "Yes, I couldn't believe Warrant Murphy had hit him, Warrant Officer Murphy had hit him, and Captain Sox told me to give him a beating, just don't kill him."

 

(Appeal Book, Volume 6, page 1173.)

 

The Judge Advocate immediately stopped the witness and asked the members of the Court to retire. He then asked for submissions from counsel, both of whom had clearly been taken by surprise and said as much. Counsel for the accused submitted that the evidence was admissible as showing Matchee's state of mind. The Judge Advocate ruled it inadmissible in the following terms:

JUDGE ADVOCATE: Mr. McCann, it's the court's ruling that those statements made by Private Brocklebank concerning what Captain Sox said are inadmissible, and I will direct the court to disregard that.

 

[Emphasis added.]

 

(Appeal Book, Volume 6, page 1176.)

The appellant's submission is that the Judge Advocate should not have rejected the proffered evidence without at the least having conducted a voir dire in order to determine whether the statements met the requirements of necessity and reliability established by the recent Supreme Court decisions in R. v. Smith[14] and R. v. Khan[15]. He also submits that the evidence was independently admissible as showing Matchee's intent.

In my view, this ground of appeal is also without merit. In the first place, the alleged statement by Captain Sox to Matchee was not only hearsay but double hearsay, and while the declarant Matchee was admittedly unavailable, the original declarant, Captain Sox, was available and did testify as did also Warrant Officer Murphy. Manifestly, even if a voir dire had been held the requirement of necessity could not have been met.

It should also be noted that the Judge Advocate's ruling was expressly limited to evidence of "what Captain Sox said." Appellant's counsel did not return to the question in any other form during his cross-examination of Brocklebank.

Furthermore, even if it were assumed for the sake of argument that Matchee's declaration to Brocklebank was admissible as evidence of his intent in acting as he did (a question that we need not decide), it is my view that in any event the exclusion of such evidence by the Judge Advocate was wholly without consequence and could not affect the result. In fact, it is quite clear from the record that, at a later stage in the trial, a very similar declaration by Matchee to the witness Giasson to the effect that higher authorities were aware of what was going on, was admitted into evidence. This second statement contained all the substance of the earlier statement to Brocklebank with respect to Matchee's alleged belief, but did not contain the objectionable and inadmissible statement allegedly made by Captain Sox to Matchee and passed on by the latter to Brocklebank. The nature of the evidence so admitted and the distinction between it and the evidence of Brocklebank which was rejected appears clearly from the ruling of the Judge Advocate on the second occasion:

JUDGE ADVOCATE: The defence seeks to introduce, through the witness Giasson, statements to be attributed to Master Corporal Matchee which, it has been admitted before this court, is unable to testify for health reasons.

 

The facts on this testimony are that sometime around 2320 hours on the 16th of March, 1993, Master Corporal Giasson was in the presence of the deceased and Master Corporal Matchee and one other, at which point in time he heard some statements made by Master Corporal Matchee as related to the court by the witness and as referred to by counsel for the defence, that is to say, in response to Giasson's questions Matchee replied that "his parents or himself would do thirty days in jail and the local police would probably shoot him in the back of the head; that in Canada we are not allowed to do this but here we are; the NCOs are aware of it, the officers are aware of it, several others, six to eight people, are ready to give him the same treatment, even the NCO gave him the boot".

 

The defence argues that this extra-judicial statement is admissible because it forms part of the evidence that the prosecution may be relying on in respect of its theory that Private Brown was an aider and abetter to the commission of the offence of murder by Master Corporal Matchee, and in order for them to prove that Private Brown was an aider and abetter in that regard, they would have to, on the strength of the Ontario Court of Appeal's decision in R. v. Jackson & Davey, have to prove that Master Corporal Matchee himself committed the offence of second degree murder. In order to do so the state of mind of Master Corporal Matchee would have to be proven and the statements related by Master Corporal Giasson concerning Master Corporal Matchee would be relevant to that intention.

 

The prosecution argues that this is clearly hearsay. It is even to be considered as double hearsay and not part of the res gestae and therefore should be excluded as evidence before this court. He relies upon a previous decision taken by this Judge Advocate in these proceedings and he refers to the testimony of Private Brocklebank. Without revisiting that decision in any great detail, that scenario was significantly different than the one that is being presented before this court by this witness. In that scenario it was sought by the defence to report statements made by Matchee, through Private Brocklebank, that were to be attributed not to Matchee but to Warrant Officer Murphy and Captain Sox. In other words, Brocklebank would be testifying that Matchee said Murphy said this and Sox said that, and that was viewed as being at best double hearsay by this court and it was ruled to be inadmissible.

 

Here, on the other hand, Matchee is not being alleged to report words spoken by other persons; these are words spoken by himself. Matchee is unable to testify. What Matchee's intent was is relevant to the charges before this court, both from the prosecution's point view and the defence's point of view, and therefore the court is going to rule it as being relevant admissible evidence pursuant to rule 27(d) of the Military Rules of Evidence.

 

(Appeal Book, Volume 7, pages 1341 to 1343.)

 

Finally, I would note that since, at the end of the day, the appellant was acquitted of the charge of murder and convicted only of manslaughter, the question of Matchee's intent is for all practical purposes irrelevant. Accordingly, in the circumstances, and assuming without deciding that it was error for the Judge Advocate to reject all or part of Brocklebank's evidence as to Matchee's alleged statement, I would apply the provisions of section 241 of the National Defence Act and hold that there has been no substantial miscarriage of justice.

 

The sentence appeal

 

The Crown seeks leave to appeal the sentence. The appellant opposes that application on the ground that leave should only be granted where it can be demonstrated that the Judge Advocate has committed an error in his instructions to the Court on the question of sentence. I do not agree. The provisions of the National Defence Act subjecting a sentence appeal to a prior requirement of leave contain no such restriction as to the criteria which should guide the Court in deciding whether to grant leave. In this respect, the Court is in the identical situation as a civilian appellate court hearing sentence appeals under the Criminal Code. Sentences pronounced by courts martial may require the intervention of this Court for important reasons of public policy quite unrelated to the legality of the instructions given to the court martial by the judge advocate. Indeed, this Court only recently decided a sentence appeal which exemplifies such reasons of public policy.[16] It should also be remembered that sentence appeals are a two-way street and that if we were to accept the appellant's submissions on this point we might render illusory many sentence appeals by accused persons. Given the importance of this case both nationally and internationally I think it is in the public interest that the sentence should be reviewed in this Court and I would accordingly grant leave.

The Crown submitted that the sentence of five years imposed by the General Court Martial is too low given the objective gravity of both the offence of manslaughter and the offence of torture. In particular the latter offence, containing as it does in its definition a substantial element of breach of public trust and of inhumanity which has given rise to international condemnation,[17] should attract a very substantial sentence.

I agree that at first blush the sentence of five years appears inordinately low. Certainly if the appellant's participation in the beating of the prisoner had been anything approaching what the evidence attributed to Matchee I would feel it incumbent on this Court to intervene. The difficulty I have, however, flows from the very nature of the court martial process and the particular and very complex fact pattern of the present case.

Under military law it is the court martial itself, composed of lay officers, which pronounces the sentence. That sentence, like the finding of guilt which preceded it, is known to the world only by its result. The members of the court are not asked for and may not give any reasons to support the sentence which they impose. Clearly, if an error is made by the judge advocate in his instructions to the court martial, that would provide grounds for appellate intervention. There is no suggestion of that here.

Equally, where the facts of the case admit of only one interpretation, or where the interpretation most favourable to the accused results in a sentence which is manifestly insufficient or disproportionate, a Crown appeal against the sentence may succeed. That was the situation in Laflamme, supra. By the same token, an appeal by the accused against sentence would succeed where such sentence was disproportionately heavy on any view of the facts which was open to the Court consistent with the finding of guilt.

In brief, since no reasons are given for the sentence, any error on the part of the members of the court martial must be evident from a reading of the material which is available to the appellate court. In the absence of such error, a sentence must be allowed to stand.

This being a Crown appeal, the question then becomes whether, given the many complexities of the facts of this case, there is at least one view of them which was open to the Court Martial which would justify both the finding of guilt and the sentence imposed. In my opinion there is. If the Court Martial found the accused guilty primarily as a result of his personal actions in hitting the prisoner and kicking him at an early stage of his ordeal and rejected any theory of guilt based on the accused's being an accomplice in Matchee's later terrible actions, the sentences can be supported. Such a view was open to the Court Martial: one of the Crown's alternative theories of guilt for which it advanced evidence and argument was that the blows admittedly struck by the accused contributed to the prisoner's death and caused him intense pain. If that view and that theory of guilt were the only ones accepted by the Court Martial, the sentence imposed would not be

inadequate in the light of the many factors weighing in the appellant's favour. There were, of course, many other views which could have been taken of the evidence and many other theories upon which the Court Martial could have found the accused guilty on either or both of the charges which he faced. But since we cannot know the mental processes of the members of the Court it is impossible for us to say that they erred in reaching the sentence that they did.

I would dismiss the appeal against sentence.

 

Conclusion

 

For the foregoing reasons, I would dismiss the appeal against conviction, I would grant leave to appeal the severity of sentence and I would dismiss the appeal by the Crown against the severity of sentence.

 

"James K. Hugessen"

J.A.

 

"I agree,

Gordon Hart, J.A."

 

"I agree,

John W. Brooke, J.A."

 



[1] R.S.C. 1985, c. C-46

 

[2] R.S.C. 1985, c. N-5.

 

273. Where a person subject to the Code of Service Discipline does any act or omits to do anything while outside Canada which, if done or omitted in Canada by that person, would be an offence punishable by a civil court, that offence is within the competence of, and may be tried and punished by, a civil court having jurisdiction in respect of such an offence in the place in Canada where that person is found in the same manner as if the offence had been committed in that place, or by any other court to which jurisdiction has been lawfully transferred.

 

273. Tout acte ou omission commis à l'étranger par un justiciable du code de discipline militaire et qui constituerait, au Canada, une infraction punissable par un tribunal civil est du ressort du tribunal civil compétent pour en connaître au lieu où se trouve, au Canada, le contrevenant; l'infraction peut être jugée et punie par cette juridiction comme si elle avait été commise à cet endroit, ou par toute autre juridiction à qui cette compétence a été légitimement transférée.

 

 

[3] (1980), 54 C.C.C. (2d) 129

[4] (1983), 4 C.M.A.R. 277

[5] (1986), 4 C.M.A.R. 414

 

[6] (1987), 4 C.M.A.R. 433

 

[7] [1989] 2 S.C.R. 1073

 

[8] (1992), 70 C.C.C.(3d) 1

 

[9] (1993), 5 C.M.A.R. 157

 

[10] (1990), 5 C.M.A.R. 38

 

[11] (1994), 5 C.M.A.R. 182

 

[12] (1993), 5 C.M.A.R. 171

 

[13] (1972), 3 C.M.A.R. 85

 

[14] (1992), 75 C.C.C.(3d) 257

 

[15] (1990) 59 C.C.C. (3d) 92

[16] See R. v. Laflamme (1993), 5 C.M.A.R. 145

 

[17] See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, 10 December 1984, Can. T.S. 1987, No. 36

 

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