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ARMED FORCES - Military law - Code of Service Discipline (CSD) - Military justice and service discipline - Service offences

Friday, July 26, 2019 @ 3:48 PM  


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Appeals from judgments of the Court Martial Appeal Court of Canada concerning the military exception in section 11(f) of the Canadian Charter of Rights and Freedoms, which guaranteed every person charged with an offence carrying a punishment of at least five years’ imprisonment the right to the benefit of a jury trial, “except in the case of an offence under military law tried before a military tribunal”. The Court had to decide whether an offence under s. 130(1)(a) of the National Defence Act (NDA) fell within the scope of this exception. Section 130(1)(a) created, by way of incorporation, service offences that add to those already contained in the Code of Service Discipline (CSD). It established, as a service offence, any “act or omission that takes place in Canada and is punishable under ... the Criminal Code or any other Act of Parliament”. This transformed criminal and other federal offences (i.e., ordinary civil offences) that took place in Canada into service offences, thereby giving service tribunals jurisdiction (concurrent with civilian courts) over such offences when committed by a person who was subject to the CSD. The accused persons, all of whom were members of the Armed Forces at the relevant time, were each charged with one or more service offences under s. 130(1)(a). Before various standing courts martial, the accused persons asserted their right to a trial by jury under s. 11(f) of the Charter, maintained that the military exception was not engaged in their circumstances and claimed that, since s. 130(1)(a) brought them within the military justice system (which did not provide for a trial by jury), it was inconsistent with their s. 11(f) right. All but one of those challenges failed, and appeals ensued. The accused persons submitted that the only “offence[s] under military law” captured by the military exception in s. 11(f) were those listed in ss. 73-129 of the NDA, which included spying for the enemy, mutiny with violence, insubordination, and other “purely” military offences. They argued that only “special standards of military discipline”, to which ordinary citizens were not subject, constituted “military law”. The Crown, in contrast, submitted that any service offence that was validly enacted pursuant to Parliament’s authority under s. 91(7) of the Constitution Act, 1867, qualified as “an offence under military law” for the purposes of s. 11(f).

HELD: Appeals dismissed in Stillman, allowed in Beaudry. The inclusion of a military exception showed that s. 11(f) contemplated a parallel system of military justice designed to foster discipline, efficiency, and morale in the military. Section 11(f) carved out an exception to the right to a trial by jury. The military justice system evolved from a command-centric disciplinary model that provided weak procedural safeguards, to a parallel system of justice that largely mirrors the civilian criminal justice system. In some respects, a military panel was analogous to a jury. There were sound reasons why the military justice system opted for a unique military panel model, rather than a jury model. The purpose of the military exception was to recognize and affirm the existence of a separate military justice system tailored to the unique needs of the military, and to preserve the historical reality that jury trials in cases governed by military law have never existed in Canada. There were compelling reasons why the “military nexus” doctrine should not be resurrected. Sentencing in the military justice system was guided by objectives that were unique to the military milieu. Extracting serious civil offences from this system would have the unfortunate consequence of eliminating these unique and important objectives from being considered in the sentencing process. The text “an offence under military law” in s. 11(f) referred to an offence that was validly enacted pursuant to Parliament’s power over the “Militia, Military and Naval Service, and Defence” under s. 91(7) of the Constitution Act, 1867. There were meaningful limits on Parliament’s authority to decide what was “an offence under military law”. However, s. 130(1)(a) fell within Parliament’s legislative competence under s. 91(7) of the Constitution Act, 1867, and was not overbroad under s. 7 of the Charter, and therefore validly created “an offence under military law” for the purposes of s. 11(f) of the Charter. A serious civil offence tried as a service offence under s. 130(1)(a), whether or not there is a heightened “military nexus”, qualified as “an offence under military law”. Accordingly, where such an offence was tried before a military tribunal, the military exception in s. 11(f) of the Charter was engaged. Section 130(1)(a) of the NDA was not inconsistent with s. 11(f) of the Charter, as it did not deprive a person who was lawfully entitled to a trial by jury of that right. The Court dismissed the appeals in Stillman and allowed the appeal in Beaudry. The declaration in Beaudry that s. 130(1)(a) was of no force or effect in its application to any civil offence for which the maximum sentence was imprisonment of five years or more was set aside, and the conviction was restored.

R. v. Stillman, [2019] S.C.J. No. 40, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown and M. Rowe JJ., July 26, 2019. Digest No. TLD-July222019015