Bruce W. MacGregor

Military accused persons charged with serious civil offences under s. 130(1)(a) of the National Defence Act argued that the military justice system's denial of a jury trial violated s. 11(f) of the Charter.

The majority held that s. 130(1)(a) falls within the military exception in s. 11(f) because it was validly enacted under Parliament's power over militia and defence under s. 91(7) of the Constitution Act, 1867, and is not overbroad under s. 7.

The majority rejected any heightened 'military nexus' requirement beyond the accused's military status.

In dissent, Karakatsanis and Rowe JJ. would have read a military connection requirement into s. 130(1)(a), limiting military court jurisdiction to offences directly connected to military circumstances.

Military accused persons charged with serious civil offences under s. 130(1)(a) of the National Defence Act argued that the military justice system's denial of a jury trial violated s. 11(f) of the Charter.

The majority held that s. 130(1)(a) falls within the military exception in s. 11(f) because it was validly enacted under Parliament's power over militia and defence under s. 91(7) of the Constitution Act, 1867, and is not overbroad under s. 7.

The majority rejected any heightened 'military nexus' requirement beyond the accused's military status.

In dissent, Karakatsanis and Rowe JJ. would have read a military connection requirement into s. 130(1)(a), limiting military court jurisdiction to offences directly connected to military circumstances.

The Crown brought a motion to stay a declaration of invalidity issued by the Court Martial Appeal Court of Canada, which had declared s. 130(1)(a) of the National Defence Act of no force or effect in its application to any civil offence carrying a maximum sentence of five years or more imprisonment, pending the Crown's appeal of that decision.

The Court applied the well-established test from Manitoba (Attorney General) v. Metropolitan Stores Ltd. and RJR-MacDonald Inc. v. Canada (Attorney General) and found that the balance of convenience did not favour granting the stay.

The motion was dismissed.

The Court dismissed the appeal and affirmed the order for a new trial in a sexual assault prosecution.

It held there was no evidentiary basis to find that the accused took reasonable steps to ascertain consent under s. 273.2(b) of the Criminal Code, so the defence of honest but mistaken belief in consent should not have been left with the panel.

These appeals challenged the constitutional validity of National Defence Act provisions that permit service prosecution of underlying federal offences and fraudulent acts for persons subject to the Code of Service Discipline.

The appellants argued the provisions were overbroad under section 7 of the Charter because they extended military jurisdiction beyond conduct directly tied to military operations.

The Court held the provisions pursue maintenance of discipline, efficiency, and morale, and that prosecuting off-duty or non-base criminal conduct remains rationally connected to that objective.

The overbreadth challenge failed and all appeals were dismissed.