On 24 January 2020, the Court Martial Administrator issued a convening order scheduling Bombardier Cogswell’s Standing Court Martial to begin on 24 May 2020 in Gagetown, New Brunswick.
[25] On 16 March 2020, due to the ongoing COVID-19 pandemic, the A/CMJ directed the Court Martial Administrator to cancel all convening orders for courts martial to be held between 16 March and 5 April 2020.
[26] On 27 April 2020, the court was informed via a defence application that Bombardier Cogswell had fired her defence counsel and he filed a Notice of Application with the court to be removed as counsel of record for her.
[27] On 11 May 2020, the court approved a change in counsel for the applicant with Mr Kasper becoming counsel of record.
[28] On 14 May 2020, for all courts martial that required travel, d’Auteuil A/C.M.J. extended the cancellation of all convening orders to 31 May 2020. Since Bombardier Cogswell’s court martial was set to begin in Gagetown, New Brunswick on the 24th of May 2020, it required rescheduling.
[29] On 3 June 2020, the court held a conference call to confirm new dates for Bombardier Cogswell’s trial. At the time, the court expressed a desire to get as much done during the summer months prior to the second wave of the pandemic. On 10 June 2020, during a follow up conference call, the parties finally agreed to the new trial dates of 23 November to 11 December 2020. These later dates were specifically chosen to permit Mr Kasper, Bombardier Cogswell’s new defence counsel sufficient time to become familiar with her file and to accommodate his personal court schedule. Prior to confirming these dates, the accused had to waive her paragraph 11(b) Charter rights to accommodate the new defence counsel’s calendar and it was understood that the dates agreed to were beyond the eighteen month Jordan timeline established by the SCC. Any further changes to these dates would require a subsequent waiver.
[30] As mentioned earlier, on 2 October 2020, after the issuance of stays in similar applications, the applicant’s counsel Mr Kasper, submitted a Notice of Application for Bombardier Cogswell seeking a stay of proceedings alleging a violation of paragraph 11(d) Charter rights related to the continued presence of the impugned CDS Order.
[31] On 16 October 2020, during a teleconference, the applicant’s counsel acknowledged that since the CDS Order had been suspended and the court in MacPherson et al., found no further infringements that lingered with respect to the paragraph 11(d) Charter rights of an accused, he would withdraw his application. After a subsequent discussion, the court advised him that since the Court Martial Appeal Court (CMAC) was seized of the issue of independence of the military judiciary, the Applicant’s Original Notice of Application related to an alleged infringement of her paragraph 11(d) Charter rights filed on 02 October, 2020 should be dealt with at the start of her court martial proceedings in order to preserve her right of appeal on the issue.
[32] On 12 November 2020, upon learning of the court martial decision rendered in Christmas, which conversely found that the threat to judicial independence had not been cured, defence counsel for Bombardier Cogswell, Mr Kasper, sought the audio recording of the oral ruling delivered by the d’Auteuil A/C.M.J. in Christmas and requested a teleconference.
[33] The next day, on Friday, 13 November 2020, a teleconference was held where Mr Kasper advised the court that, given the lack of judicial comity, he would seek an adjournment of Bombardier Cogswell’s court martial until the issue of judicial independence had been resolved by the CMAC. The prosecution advised the court that they would oppose such an adjournment. As such, a hearing was scheduled for the court to hear this request as soon as possible on 17 of November 2020 just days before the court martial for the applicant was set to begin.
[34] The next working day, being Monday, 16 November 2020, the OCMJ was advised that in light of the recent court martial decisions and the concerns raised with regard to paragraph 9 of CFOO 3763, the CDS had ordered the CFOO revoked and reissued with paragraph 9 removed.
[35] On 17 November 2020, at the hearing scheduled to consider an adjournment, the lead counsel for the applicant, being Mr Kasper, advised the court that he now intended to file a formal application alleging that his client’s rights had been infringed over the last year as a result of the CDS Order being in effect. A little shocked by yet another last minute change, the court reminded him that it would expect specific evidence on the issues raised and further explained that if he was seeking a stay, that the court required him to bring forward specific case law and precedent that would provide the court such authority. The court explained that the granting of a judicial stay is the most extreme remedy in law and if the court identifies an infringement, its primary duty is to impose a remedy with the view of correcting that infringement first and if a personal remedy was appropriate for an accused, the court had a responsibility to consider alternative remedies prior to the consideration of a stay. At the hearing, the court agreed to consider the adjournment request for Mr Kasper to permit him to prepare his application, but the parties also acknowledged that he had to seek instructions from his client regarding a waiver with respect to the dates. The new start date for the trial date being considered at that time was 7 December 2020.
[36] The next day, Wednesday, 18 November 2020, the subject teleconference was held. It coincided with the same day the problematic CFOO 3763 was reissued, revoking the impugned paragraph 9. It was also two working days before the start of the applicant’s trial was scheduled to begin in Gagetown, New Brunswick, the coordination for which had required endless hours to attain the required provincial and health approvals to ensure the court martial could unfold in conformity with the New Brunswick provincial restrictions. Thousands of dollars had been spent in arranging the travel of a number of witnesses, counsel and court staff required for the court martial. It is important to be aware that the applicant’s court martial had already been rescheduled from May 2020, to late November 2020 beyond the eighteen month Jordan deadline at the specific request of the applicant and Mr Kasper.
[37] Importantly, at the time of the purported teleconference, all the deficiencies that d’Auteuil, A/C.M.J. identified in Christmas had been cured. The conference call was intended to administratively confirm new court dates and set a way ahead in addressing the applicant’s proposed new application in light of the divergence in judicial comity that flowed from the court martial decision in Christmas. It was during that teleconference that the court was informed for the first time that the Director of Defence Counsel Services (DDCS) had now assigned Captain Sommers as special counsel for the sole purpose of raising the accused’s application in a preliminary proceeding alleging that her paragraph 11(d) Charter rights had been infringed.
