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CMAC strikes down key provision of National Defence Act for violating military members’ Charter right to jury trial

Thursday, September 20, 2018 @ 2:15 PM | By Cristin Schmitz

In a legal earthquake for the military justice system, the Court Martial Appeal Court of Canada (CMAC) has split 2-1 to strike down s. 130(1)(a) of the National Defence Act (NDA) because the majority held that the provision — which deems Criminal Code offences committed in Canada by military members to be “service offences” — deprives military accused of their Charter s. 11(f) right to trial by jury.

The Sept. 19 majority decision by CMAC Justices Jocelyne Gagne and Vital Ouellette (Chief Justice Richard Bell dissented) ruled that to deprive a military accused of a trial by jury for offences punishable by more than five years in prison, and that were committed within Canada, is not justified under s. 1 of the Charter as a reasonable and demonstrably justified limit in a free and democratic society: R. v. Beaudry 2018 CMAC 4.

In allowing the appeal of Cpl. R.P. Beaudry and setting aside his conviction by a court martial for sexual assault causing bodily harm, the CMAC declared para. 130(1)(a) of the National Defence Act of no force or effect “in its application to any civil offence for which the maximum sentence is five years or more, in accordance with subsection 52(1) of the Constitution Act, 1982.”

For the majority, Justice Ouellette wrote that “any limit on a right must be related to the maintenance of discipline, morale and efficiency of the armed forces. In the absence of such a connection, there is no reason why a member would not enjoy the same rights as any other Canadian citizen. Indeed, it would be ironic for those who have the ultimate responsibility of protecting freedom, justice and social equality, at the risk of their lives, to not enjoy these same rights.”

The Beaudry decision effectively shrinks the scope of the military justice system by confining it to dealing with military service offences under the Code of Service Discipline (which are mostly comparatively minor) because the court held that courts martial in Canada can no longer try any civil offence — including sexual assault and other Criminal Code offences — which attract a maximum of more than five years’ maximum imprisonment.

Ongoing courts martial have been halted in the wake of Beaudry, and pending charges for serious crimes could referred by military prosecutors to civilian criminal courts.

The latest CMAC decision disagrees with contrary rulings in two other recent CMAC decisions.

Jean-Bruno Cloutier

Lt.-Col. Jean-Bruno Cloutier

However, the Supreme Court of Canada is set to have the final word on the far-reaching issue, because it was awaiting Beaudry’s outcome before scheduling a hearing on R. v. Stillman and several other appeals which raise the same issue. Those appeals could be heard as early as the top court’s spring session in 2019.

Winning defence counsel, Lt.-Col. Jean-Bruno Cloutier and Lt.-Cmdr. Mark Letourneau (who also represent the appellant accused on the appeals pending at the Supreme Court of Canada) told The Lawyer’s Daily the Beaudry decision vindicates the Charter rights of military members.

“This is certainly one of the biggest cases in military [justice] history that has been rendered — as to its consequences,” Cloutier said. “It’s a fairly important case.”

Mark Letourneau

Lt.-Cmdr. Mark Letourneau

Cloutier suggested that amendments to the National Defence Act to permit a court martial to sit with a jury of all citizens, including civilians, on trials for offences committed in Canada would be one positive solution for the constitutional problem identified by the CMAC in Beaudry. “The right to a jury trial is very much at the centre of equality before the law,” Cloutier explained.

He noted such a move would put Canada into a leadership position internationally.

Letourneau said “what this judgment really means is that courts martial no longer have jurisdiction to try serious criminal offences. The constitutional problem here is that courts martial have no juries. The court declared that soldiers should enjoy the same rights as any other Canadian citizen unless the maintenance of discipline, morale and efficiency of the Armed Forces justifies otherwise. In this case, the court found that there is no such reason to deprive soldiers of the constitutional right to be tried by jury for serious criminal offences.”

Ottawa lawyer Michel Drapeau, who teaches military law at the University of Ottawa, lauded the ruling. “It’s a huge decision,” he told The Lawyer’s Daily. “I could not be more pleased by the Beaudry decision. It was worth the wait.”

Michel Drapeau

Michel Drapeau

“It is high time that the fundamental structural defects of the military justice be addressed and corrected,” opined Drapeau, who has called for such reform in a book on military justice he co-authored with former Federal Court of Appeal Justice Gilles Létourneau. “I look forward to the decision by the Supreme Court of Canada in Stillman.”

The provision that was struck down considers a “service offence” that can be tried by the military justice system to be any offence committed by persons subject to the Code of Service Discipline of the Canadian Armed Forces (active members of the Forces and other persons connected with the Forces). The act or omission must be an offence under Part VII of the NDA, the Criminal Code, or any other federal statute.

The majority reasoned that: s. 11(f) of the Charter provides that any person charged with an offence has the right to a trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment, “except in the case of an offence under military law.”

The majority went on to hold that civil offences, such as Criminal Code offences including sexual assault causing bodily harm, “are not offences under military law.”

Thus “para. 130(1)(a) of the NDA is unconstitutional because it deprives a member of the right to a trial by judge and jury for a civil offence for which the maximum sentence is five years or more,” the majority concluded.

In his dissent, Chief Justice Bell said the main issue in the appeal was whether s. 130(1)(a) violates the Charter right to a jury trial by denying those who are subject to the Code of Service Discipline the right to such a trial where charges involve civil offences allegedly committed in Canada.

“In my view, the answer to this question will determine the future of the military justice system in Canada,” he emphasized. “I would therefore frame the overarching question as follows: what was Parliament’s intention when it carved out the military exception” in s. 11(f) of the Charter?

He concluded that s. 130(1)(a) of the NDA does not violate the right to a jury trial in the Charter because by “enacting subsection 11(f) of the Charter, Parliament intended to preclude individuals subject to the Code of Service Discipline who are alleged to have committed service offences under paragraph 130(1)(a) of the NDA from having the right to a trial by jury.”