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Armed forces - Military law - Military justice and service discipline - Service tribunals - Court martial - Appeals to Court Martial Appeal Court - Constitutional issues

Thursday, August 18, 2016 @ 8:00 PM  


Motion by Cawthorne to quash the appeal by the Minister of National Defence (Minister) from a judgment of the Court Martial Appeal Court of Canada setting aside his convictions for possession of child pornography and ordering a new trial. Appeal by the Minister from a judgment of the Court Martial Appeal Court of Canada declaring invalid s. 230.1 of the National Defence Act (Act) after military judges acquitted Gagnon of sexual assault and allowed Thibault’s plea in bar of trial. The Court was called upon to determine whether provisions of the Act giving the Minister the authority to appeal from decisions of a court martial or the Court Martial Appeal Court violated ss. 7 or 11(d) of the Canadian Charter of Rights and Freedoms (Charter). During Cawthorne’s trial, defence counsel brought a motion for a mistrial on the basis of the prejudice arising from inadmissible re-examination evidence obtained from Cawthorne’s former girlfriend. The military judge dismissed the motion, and the jury panel returned a verdict of guilty on both counts charged. A majority of the Court Martial Appeal Court found that the mistrial ought to have been granted. The Minister appealed as of right to the Court, pursuant to s. 245(2)(a) of the National Defence Act. The Minister argued that the military judge made no error in declining to grant a mistrial. Cawthorne sought to quash the Minister’s appeal on the basis that s. 245(2) violated the Charter. In the other matter, Gagnon and Thibault were each charged with sexual assault. Gagnon was acquitted, and the Minister appealed on the basis that the military judge erred by putting the defence of honest but mistaken belief in consent to the panel. Thibault presented a plea in bar of trial, claiming that the matter was not under military jurisdiction because of an insufficient nexus with military service. The military judge allowed the plea, and the Minister also appealed. Gagnon and Thibault brought motions to quash the Minister’s appeals on the basis that s. 230.1 of the National Defence Act, which gave the Minister the authority to appeal to the Court Martial Appeal Court, violated s. 7 of the Charter. The Court Martial Appeal Court dismissed the motions to quash but agreed that s. 230.1 of the National Defence Act should be invalidated.

HELD: Motion to quash dismissed, appeals allowed. The power that ss. 230.1 and 245(2) of the Act conferred on the Minister to initiate an appeal could effect a deprivation of liberty. As a result, s. 7 of the Charter was engaged. A prosecutor, whether it be an Attorney General, a Crown prosecutor, or some other public official exercising a prosecutorial function, had a constitutional obligation to act independently of partisan concerns and other improper motives. The law recognized as constitutional the principle that prosecutors could not act for improper purposes, such as purely partisan motives. This principle was, accordingly, a principle of fundamental justice under s. 7 of the Charter. The Minister, like the Attorney General or other public officials with a prosecutorial function, was entitled to a strong presumption that he exercised prosecutorial discretion independently of partisan concerns. The mere fact of the Minister’s membership in Cabinet did not displace that presumption. It followed that Parliament’s conferral of authority over appeals in the military justice system on the Minister did not violate s. 7 of the Charter. The argument that the law violated the right to an independent tribunal could not succeed. The impugned provisions of the Act did not violate s. 7 or s. 11(d) of the Charter. The decision not to grant a mistrial to Cawthorne was within the military judge’s discretion. He made a reasonable attempt to remedy the error by instructing the panel to disregard the evidence because it was both unreliable and prejudicial. Even if the evidence in question was inadmissible, the military judge did not err in declining to grant a mistrial. Cawthorne’s motion to quash the appeal was dismissed. The Minister’s appeal was allowed and the convictions entered at trial against Cawthorne were reinstated. In the Gagnon and Thibault matter, the Minister’s appeal was allowed. Section 230.1 of the Act was constitutional. The matter was remitted to the Court Martial Appeal Court for the hearing of the appeals on the merits.