CMAC 2021

The appellant, a military captain, appealed his convictions and sentence for sexual assault, sexual harassment, and ill treatment of subordinates arising from incidents at a unit Christmas party.

The Court Martial Appeal Court allowed the appeal in part, quashing the convictions for sexual assault and ill treatment of subordinates and ordering a new trial on those charges.

The Court found the trial judge's reasons for those convictions were insufficient and the verdicts unreasonable because the judge failed to resolve significant contradictions in the testimony of three witnesses regarding the incidents.

However, the Court upheld the conviction for sexual harassment, finding it was supported by the evidence, and affirmed the sentence of a reduction in rank.

The respondent, Corporal Euler, brought a motion to quash the Crown's appeal on the basis that the appellant had not shown a substantial ground of appeal in its Memorandum of Fact and Law.

The parties presented differing interpretations of the Military Judge's reasons regarding whether corroboration of the complainant's testimony was required.

The Court Martial Appeal Court of Canada dismissed the motion, holding that the power to quash an appeal should be exercised sparingly and that the differing interpretations of the Military Judge's reasons were more appropriately dealt with at a hearing on the merits.

The moving party, a military officer charged with sexual assault and forcible confinement, brought a motion to re-impose a stay of proceedings pending the disposition of an application for leave to appeal to the Supreme Court of Canada in related matters.

The Court Martial Appeal Court of Canada dismissed the motion, noting that significant delays had already occurred and that an application for leave to appeal is not intended to freeze the wheels of justice.

The Court held that it is in the interests of the administration of justice that the appeal be heard on its merits expeditiously.

The respondent, Corporal Christmas, brought a motion to re-impose a stay of proceedings pending the Supreme Court of Canada's disposition of a leave to appeal application in related matters (Edwards et al.).

The original stay was granted on the basis that the military judge lacked independence, but was lifted after the Court Martial Appeal Court allowed the Crown's appeals in the related matters.

The Court dismissed the motion, holding that an application for leave to appeal to the Supreme Court of Canada is not intended to freeze the wheels of justice and that it is in the interests of the administration of justice to proceed expeditiously.

The applicant, convicted of sexual assault, brought a motion to raise a new issue on appeal and to admit fresh evidence.

The new issue concerned the constitutionality of s. 165.21 of the National Defence Act, which requires military judges to be members of the Canadian Armed Forces.

The Court allowed the new issue to be raised, noting it was raised at trial and the respondent consented.

However, the Court dismissed the motion to admit fresh evidence consisting of affidavits from military commanders regarding the use of civilian judges.

The Court applied the Palmer test and found the evidence could have been adduced at trial with due diligence, was not decisive, and would not have affected the result.

The appellant, a former member of the Canadian Armed Forces, pleaded guilty to five offences and was sentenced by a military judge to three months in prison, to be served in a service prison.

The appellant appealed the place of incarceration, arguing that the military judge erred in finding that the exigencies of the service required him to serve his sentence in a service prison.

The Court Martial Appeal Court allowed the appeal, finding that the military judge made a procedural error by failing to invite the parties to make submissions on the place of incarceration before making the order.

Given the appellant's personal circumstances, the fact that he had not been a member of the Armed Forces for over a year, and the Crown's position that it would not have opposed a civil prison, the Court ordered the sentence to be served in a civil prison.

The applicant, a sailor in the Canadian Armed Forces, was arrested for alleged drunkenness and released on conditions by a Custody Review Officer before any charges were laid.

He brought a motion arguing that the imposition of release conditions without charge violated his section 7 Charter rights.

The Court Martial Appeal Court dismissed the motion, holding that the National Defence Act permits a military judge to impose conditions on release even if no charge has yet been laid.

The Court found that while the conditions constituted a deprivation of liberty, they were not imposed contrary to the principles of fundamental justice, and any such deprivation would be saved under section 1 of the Charter given the unique context of the military justice system.

The Crown appealed decisions staying proceedings against the respondents on the basis that the military justice system violated their section 11(d) Charter rights to an independent and impartial tribunal.

The respondents argued that the Office of the Chief Military Judge's organizational structure and the application of the Code of Service Discipline to military judges created a reasonable apprehension of bias.

The Court Martial Appeal Court allowed the appeals, finding that the organizational structure, including the Canadian Forces Organization Order, did not violate the Charter.

The Court held that military judges remain officers subject to the Code of Service Discipline and that the military justice system respects the core requirements of institutional independence.

The stays were lifted and the trials ordered to proceed.

The Crown appealed four court martial stay orders entered after military judges held that the possibility of prosecuting military judges under the Code of Service Discipline undermined the accuseds' right to an independent and impartial tribunal under s. 11(d) of the Charter.

The Court Martial Appeal Court held that the decisions below were inconsistent with binding Supreme Court of Canada authority recognizing the dual military and judicial role within the military justice system.

Applying the contextual reasonable-apprehension-of-bias analysis, the court found that military judges remain subject to the National Defence Act and that the impugned order did not compromise institutional independence.

The cross-appeal challenging ss. 12, 18 and 60 of the National Defence Act was dismissed, and motions to admit fresh evidence concerning the appellate court's own independence were also dismissed.

The applicant was arrested and released on conditions by a military judge before any charges were laid.

He filed a motion to cancel the conditions, arguing that a member should be released without conditions if no charges are laid by the time of a custody review hearing.

The charges were subsequently laid but then stayed by his commanding officer, rendering the motion moot.

The applicant requested the motion be heard anyway to clarify the law.

The Chief Justice of the Court Martial Appeal Court applied the factors for hearing moot cases and concluded that the confusion created by previous obiter dicta in *R. v. Larocque* constituted special circumstances warranting a hearing.

The motion was ordered to be set down for hearing despite its mootness.