CMAC 2024

A young reserve force member appealed convictions for sexual assault and behaving in a disgraceful manner, arguing that the military justice system unconstitutionally denied young persons the presumption of diminished moral culpability protected by s. 7 of the Charter.

The Court held that the presumption applies within the military justice system and was not waived by enlistment with parental consent.

It further held that most discretionary features of the National Defence Act could operate constitutionally, but mandatory long-term consequences such as criminal record consequences, DNA orders, SOIRA registration, and mandatory minimum consequences were inconsistent with the principle and not justified under s. 1.

The Court read down s. 60(1) of the National Defence Act to exclude young military members charged with service offences outside s. 249.27(1)(a), dismissed the Crown cross-appeal, and stayed both charges.

The appellant, Sergeant Meeks, was convicted of assault causing bodily harm and sentenced to 30 days' detention.

Following his sentencing, he was administratively released from the Canadian Armed Forces (CAF).

On appeal, he sought to admit fresh evidence of his release and argued that his sentence should be suspended or declared inoperative based on prior jurisprudence (Tupper).

The Court admitted the fresh evidence but held that Tupper should be read narrowly, concluding that a sentence of detention remains legally valid despite administrative release.

However, given the change in circumstances and the Crown's consent, the Court allowed the sentence appeal and suspended the remaining period of detention, subject to statutory conditions and a no-contact order.

The appellant appealed two decisions of the Standing Court Martial that dismissed his applications for a stay of proceedings based on an alleged violation of his right to be tried within a reasonable time under s. 11(b) of the Charter in respect of a sexual assault charge.

The Court Martial Appeal Court found no palpable and overriding error in the military judge's calculation and characterization of the delays under the Jordan framework.

The appeal was dismissed.

The Appellant applied to file a Memorandum of Fact and Law exceeding the 30-page limit by 15 pages in an appeal before the Court Martial Appeal Court.

The Appellant cited the voluminous record, including 29 appeal books and 13 voir dires, as justification.

The Court dismissed the application, holding that the sheer volume of material is insufficient to justify an extension.

The Appellant failed to provide a draft factum or sufficient details about the grounds of appeal to demonstrate why the arguments could not be presented concisely within the standard limits.

The appellant, convicted of sexual assault at a court martial, sought an extension of time to file his Memorandum of Fact and Law.

His new appellate counsel required additional time to review the 29-volume appeal book from the complex trial.

The Court applied the Davies criteria and found that it was in the interests of justice to grant an extension, given the volume of material and the lack of specific prejudice to the Crown.

An extension was granted to September 13, 2024.

The appellant, a Corporal in the Canadian Armed Forces, was convicted by a General Court Martial of sexual assault and sentenced to 42 days detention, with a mandatory 20-year Sex Offender Information Registration Act (SOIRA) order imposed.

The appellant appealed the conviction, arguing his prior consistent statement was improperly excluded, and appealed the SOIRA order, seeking a personal remedy under s. 24(1) of the Charter based on R. v. Ndhlovu.

The Court Martial Appeal Court dismissed the conviction appeal, holding the military judge correctly excluded the self-serving hearsay statement.

However, the Court allowed the sentence appeal and set aside the SOIRA order, finding the military judge erred in law by focusing exclusively on the risk of reoffending and failing to consider whether the order's impact, particularly travel restrictions affecting his military career, was grossly disproportionate.

The appellant appealed his conviction by a Standing Court Martial for sexual assault, arguing the military judge erred in applying eyewitness identification law and made palpable and overriding errors of fact regarding the complainant's identification of him.

The offence occurred aboard a deployed Navy ship where the complainant routinely served meals to crew members, including the appellant.

The Court Martial Appeal Court held the military judge correctly instructed herself on the frailties of eyewitness and recognition evidence, noting the potential tainting effect of a single photo shown by a colleague, and made no palpable or overriding errors in concluding the complainant reliably recognized the appellant.

The appeal was dismissed.

The Crown appealed the acquittal of a military physician on four fraud-related charges arising from the writing of illicit prescriptions.

At trial, the military judge granted a directed verdict (no prima facie case) on the basis that the Crown failed to prove actual deprivation.

The Court Martial Appeal Court allowed the appeal and ordered a new trial, finding the military judge misapplied the test for fraud and the no prima facie case standard.

The Court held that only a risk of deprivation is required, and there was some evidence upon which a trier of fact could reasonably convict.

The Crown appealed a military judge's decision to grant a stay of proceedings for an alleged abuse of process in a sexual assault trial.

The military judge had ruled that evidence of the complainant's past sexual relations with the accused was admissible and strongly suggested it be introduced via an agreed statement of facts.

When the prosecution declined to seek a statement from the complainant for that purpose, the military judge found this constituted a refusal to accept his decision and an abuse of process, ending the proceedings.

The Court Martial Appeal Court allowed the appeal, finding the military judge misapprehended the prosecution's position, which was merely a refusal to follow a suggested procedure, not a refusal to comply with an admissibility ruling.

The military judge also erred in the scope of his trial management powers and in his assessment of the appropriate remedy.

A new trial was ordered.

The Canadian Military Prosecution Service moved to have the appellant's appeal dismissed for failure to file a memorandum of fact and law within the extended time limits previously ordered.

The appellant concurrently applied to restart the appeal and for an extension of time.

The Court Martial Appeal Court dismissed the prosecution's motion, noting that an earlier order denying an extension could be revisited with compelling new evidence.

Finding that new evidence explained the delay caused by counsel's conflict of interest and that the grounds of appeal were not frivolous, the Court granted the appellant until February 28, 2024, to file his memorandum.