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SCC asked to stay ruling that guts military justice system; military warns sexual assault prosecutions in jeopardy

Monday, September 24, 2018 @ 3:17 PM | By Cristin Schmitz


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The Canadian Armed Forces (CAF) is asking the Supreme Court of Canada for an immediate stay of a recent bombshell Charter decision that guts the military justice system, and which prosecutors contend jeopardizes dozens of serious criminal prosecutions, including for sexual assault, The Lawyer’s Daily has learned.

On Sept. 21, Col. Bruce MacGregor, the CAF’s director of Military Prosecutions, filed with the top court a notice of motion seeking to suspend the Court Martial Appeal Court’s (CMAC) Sept. 19 majority judgment in R. v. Beaudry which struck down s. 130(1)(a) of the National Defence Act (NDA) as a violation of military members’ right to trial by jury: 2018 CMAC 4).

Bruce MacGregor

CAF's director of Military Prosecutions Col. Bruce MacGregor

The effect of the Beaudry ruling, which contradicts two other recent CMAC rulings — is to wipe out the military’s ability to prosecute any civilian crimes and offences for which the maximum sentence is five years or more (including dozens of the most serious crimes under the Criminal Code).

MacGregor argues in his notice of motion that it is appropriate for the Supreme Court to temporarily stay the CMAC’s declaration of invalidity (i.e. pending the top court’s determination of the Charter and jurisdictional issues involved), and that “the parties, including parties to cases currently within the military justice system, would suffer greater harm if the suspension is refused.”

MacGregor warns that, in the absence of a stay, 40 serious prosecutions currently being handled by military prosecutors (i.e. more than half of the CAF’s average annual caseload at courts martial) will have to be redirected to overburdened civilian courts — thus creating “undesirable delays and jeopardizing the ability to try these cases on their merits” — given the consequent risk of not meeting the speedy trial requirements set down by the Supreme Court in R. v. Jordan 2016 SCC 27.

The Beaudry ruling hit the military justice system hard last week — immediately disrupting three sexual assault trials for which verdicts had yet to be rendered.

The military states in its affidavit in support of the motion to suspend the declaration of invalidity that of 35 cases for which Criminal Code charges have been laid, but for which the trial has yet to start (and over which the military justice system now no longer has jurisdiction), 21 involve sex-related offences, including sexual assault, sexual exploitation (s. 153 of the Criminal Code); and voyeurism (s. 162(1)) of the Criminal Code.

(Those prosecutions are of particular importance to the CAF because it has been under sustained fire for not doing enough to deal with sexual harassment and sexual assaults that occur within its ranks. After an internal review, the CAF recently reopened 23 cases of alleged sexual assault after re-examining complaints that were dismissed by military police as unfounded.)

The other prosecutions in potential jeopardy after Beaudry include offences of criminal harassment, fraud, theft, drug trafficking and assault.

The minister of National Defence, and the judge advocate general, declined comment on the Beaudry fallout given that the matter is currently before the court.

However MacGregor told The Lawyer’s Daily “we are considering all possible options to ensure that any impacted cases move forward expeditiously and are prosecuted to the fullest extent of the law.”

He stressed by e-mail that “the interests of victims and survivors remain my highest priority, and they will continue to be actively informed and consulted in all cases. I also remain mindful of the need to proceed with all cases in a timely manner, and the right of accused persons to be tried within a reasonable time as set out in the Supreme Court decision in the Jordan case. These vital considerations will guide all of my actions and decisions in this matter.”

MacGregor added, “I wish to assure the women and men of the Armed Forces, and all Canadians, that the military justice system will continue to perform its critical role in maintaining the discipline, efficiency and morale of the CAF.”

CAF spokesperson, Maj. Doug Keirstead, told The Lawyer’s Daily “we are hopeful that the Supreme Court of Canada can make a decision on our motions in the coming weeks. In the meantime, we are evaluating ongoing cases on a case-by-case basis, and currently assessing all available options pending a decision from the Supreme Court on the stay application. Victims and survivors remain our highest priority, and we are continuing to update them as their respective cases proceed.”

Last week a majority of the CMAC declared s. 130(1)(a) of the NDA invalid, pursuant to s. 52 of the Charter, for violating Cpl. R.P. Beaudry’s s. 11(f) Charter right to a trial by jury. Subsection 130(1)(a) gives the military jurisdiction to try Criminal Code offences committed in Canada. The CMAC declared that the section is of no force or effect “in its application to any civil offence for which the maximum sentence is five years or more.”

Section 11(f) of the Charter guarantees any person charged with an offence the right, “except in the case of an offence under military law tried before a military tribunal,” to the benefit of a trial by jury where the maximum punishment for the offence is imprisonment for five years or more.

The CMAC’s majority held that: “Nothing in the wording of this provision indicates an intention to deprive any member accused of a civil offence (“offence punishable by ordinary law”) of the right to a trial by jury. The language suggests rather that this right will only be limited in the case of an offence that is essentially military in nature.”

Beaudry was convicted, by a court martial (i.e. with no jury) of sexual assault causing bodily harm — which is not an offence of an essentially military nature.

The CMAC went on to hold that s. 130(1)(a) of the NDA could not be upheld under s. 1 of the Charter as a reasonable limit in a free and democratic society. “The objective of paragraph 130(1)(a) is to ensure the maintenance of the discipline, efficiency and morale of troops within the CAF,” Justice Vital Ouellette wrote. “The foregoing indicates that whether a trial is held before a service tribunal or a civil tribunal composed of a judge and jury has no effect on the application of the Code of Service Discipline and therefore on the discipline, efficiency and general morale of the Canadian Forces. In other words, the provisions of the NDA provide the necessary means of ensuring the discipline, efficiency and morale of troops, regardless of whether the convicted person’s trial is before a service tribunal or a civil tribunal with a jury.”

The Supreme Court of Canada already has before it, in R. v. Stillman et al., a handful of appeals in which it will determine whether CAF members do have a right to trial by jury, and whether s. 130(1)(a) is an unjustified violation of s. 11(f) of the Charter. Those appeals, which now include Beaudry, are expected to be heard in the spring.

MacGregor noted in his notice of motion that two recent CMAC decisions disagree with Beaudry — holding that s. 130(1)(a) of the NDA does not violate s. 11(f) of the Charter: R. v. Royes 2016 CMAC 1, leave to the Supreme Court refused on Feb. 2, 2017, and R. v. Dery 2017 CMAC 1 (leave to the Supreme Court granted in the Stillman series of appeals March 8, 2018). The Supreme Court had been holding those appeals in abeyance pending the outcome of Beaudry.

Richard Bell

CMAC Chief Justice Richard Bell

Granting a stay until these appeals are determined, MacGregor argues in his motion, “will preserve matters between the parties in all these cases, while enabling [the Supreme Court] to render a judgment disposing of this significant issue binding on all parties before this court. It will also protect the rights of all parties in cases currently proceeding in lower courts through the military justice system, such that they may benefit from this court’s final decision on this issue. Forty cases currently in the military justice system are affected by this decision, representing over half of our average annual caseload.”

In his dissent in Beaudry, CMAC Chief Justice Richard Bell argued, as he has previously on the same question, that there is no violation of s. 11(f) because, in his view, Parliament intended to include the offences under paragraph 130(1)(a) of the NDA as “offence[s] under military law tried before a military tribunal” when drafting subsection 11(f) of the Charter. “Parliament was presumably aware of the legal consequences of the military exception set out in subsection 11(f) of the Charter, and there is every indication that it intended to exclude persons subject to the Code of Service Discipline from the right to a trial by jury when it conceived that exception,” Chief Justice Bell reasoned.

“Parliament’s intent may also be determined by the legislative context,” he argued. “In this case, Parliament established a military justice system that includes independent bureaus of prosecution and defence, independent military judges appointed by the governor-in-council until they retire or are dismissed for cause with the support of the House of Commons and the Senate, an independent commission that sets the salaries of military judges, an independent Court Martial Administrator, and appeals to this court and then to the Supreme Court of Canada. One would wonder why Parliament would establish such a complex system if the goal of the Charter was to exclude the vast majority of offences in the Code of Service Discipline from the jurisdiction of the military justice system.”