R. v. Larocque (R.),

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Létourneau, Meyer and Goodwin, JJ.A.
• Neutral Citation: 2001 CMAC 2
• Subject Matter: ARMED FORCES,CIVIL RIGHTS
• Date: 20 August 2001
• Citation: (2001), 293 N.R. 85 (CMAC),2001 CMAC 2,293 NR 85,(2001), 293 NR 85 (CMAC),293 N.R. 85

R. v. Larocque (R.) (2001), 293 N.R. 85 (CMAC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2002] N.R. TBEd. JL.053

Master Corporal Réal Larocque (appellant) v. Her Majesty The Queen (respondent)

(CMAC-438; 2001 CMAC 2)

Indexed As: R. v. Larocque (R.)

Court Martial Appeal Court of Canada

Létourneau, Meyer and Goodwin, JJ.A.

October 16, 2001.

Summary:

On October 15, 1998, a military police officer was arrested for criminal harassment. On November 9, 1999, he was charged with a criminal harassment offence and with two counts of disobeying the order of a superior and one count of using a Canadian Forces vehicle for unauthorized purposes. The criminal harassment charges were filed with a court martial on February 15, 2000. He was also charged on September 15, 2000, with failing to appear before a military tribunal and being absent without leave. His trial was initially scheduled for May 9, 2000, and, as a result of his failure to appear, it was adjourned to September 19, 2000. At trial the accused sought a stay of proceedings alleging breaches of his right to be tried within a reasonable time (Charter, s. 11(b)) and his right to liberty and security of the person (s. 7). The presiding military judge at the court martial dismissed the motion and convicted the accused. The accused appealed, arguing that the stay of proceedings should have been granted.

The Court Martial Appeal Court, per Létourneau, J.A., held that the prosecution delayed unduly, unfairly and in violation of the principles of fundamental justice in filing the charges thereby violating the accused's s. 7 rights. Létourneau, J.A., held that the appropriate remedy was a reduction of sen­tence, which had in fact already been re­duced by the court martial judge because of delay. Goodwin, J.A., disagreed as to whether there was an infringement of s. 7, but opined that the sentence was not unrea­sonable. Meyer, J.A., expressed doubts as to whether s. 7 was infringed, but opined that if there was an infringement, the reduced sentence was the appropriate sanction. In the result the appeal was dismissed.

Armed Forces - Topic 8630

Offences - Trials - Stay of proceedings - [See Civil Rights - Topic 3130 ].

Civil Rights - Topic 3130

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Delay (Charter, s. 7) - A military police officer was charged with criminal harassment 13 months after his arrest - He sought a stay of proceed­ings alleging a breach of s. 7 of the Char­ter - The court martial judge dismissed the motion and convicted the accused - He was sentenced to 54 days detention, the execu­tion of which was stayed - The accused appealed - The Court Martial Appeal Court, per Létourneau, J.A., held that the prosecution delayed unduly, unfairly and in violation of the principles of fundamental justice in filing the charges thereby violat­ing the accused's s. 7 rights - Létourneau, J.A., held that the appropriate remedy was a reduction of sentence, which had in fact already been reduced by the court martial judge because of delay - Goodwin, J.A., disagreed as to whether there was an in­fringement of s. 7 and opined that the sentence was not unreasonable - Meyer, J.A., expressed doubts as to whether s. 7 was infringed, but opined that if there was an infringe­ment, the reduced sentence was the appro­priate sanction - In the result the appeal was dismissed.

Civil Rights - Topic 8373

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Variation of sentence - [See Civil Rights - Topic 3130 ].

Cases Noticed:

R. v. Finn (D.M.), [1997] 1 S.C.R. 10; 207 N.R. 244; 148 Nfld. & P.E.I.R. 89; 464 A.P.R. 89, affing. (1996), 139 Nfld. & P.E.I.R. 97; 433 A.P.R. 97; 106 C.C.C.(3d) 43 (Nfld. C.A.), refd to. [para. 4].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 8].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 10].

Gauthier v. Canada (1998), 264 N.R. 179 (Ct. Martial App. Ct.), refd to. [para. 13].

Dulude v. Canada (2000), 264 N.R. 1 (F.C.A.), refd to. [para. 13].

du-Lude v. Canada - see Dulude v. Canada.

R. v. Kalanj; R. v. Pion, [1989] 1 S.C.R. 1594; 96 N.R. 191, refd to. [para. 17].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 28].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 28].

Counsel:

Lieutenant-colonel D. Couture, for the appellant;

Lieutenant-colonel B. Pinsonneault and Major Louis-Vincent D'Auteuil, for the respondent.

Solicitors of Record:

Office of the Judge Advocate General, Ottawa, Ontario, for the appellant;

Office of the Judge Advocate General, Ottawa, Ontario, for the respondent.

This appeal was heard on August 20, 2001, at Ottawa, Ontario, before Létourneau, Meyer and Goodwin, JJ.A., of the Court Martial Appeal Court of Canada. The deci­sion of the court was delivered on Octo­ber 16, 2001, including the following opin­ions:

Létourneau, J.A. - see paragraphs 1 to 31;

Meyer, J.A. - see paragraphs 32 to 38;

Goodwin, J.A. - see paragraphs 39 to 59.