Date: 20241209

Docket: CMAC-636

Citation: 2024 CMAC 10

CORAM:

BENNETT J.A. O'REILLY J.A. GLEESON J.A.

BETWEEN:

PRIVATE J.L.

Appellant

and

HIS MAJESTY THE KING

Respondent

Heard at Ottawa, Ontario, on February 9, 2024.

Judgment delivered at Ottawa, Ontario, on December 9, 2024.

REASONS FOR JUDGMENT BY THE COURT

Date: 20241209

Docket: CMAC-636

Citation: 2024 CMAC 10

CORAM:

BENNETT J.A. O'REILLY J.A. GLEESON J.A.

BETWEEN:

PRIVATE J.L.

Appellant

and

HIS MAJESTY THE KING

Respondent

Order restricting publication: The order of the Court Martial issued pursuant to section 179 of the National Defence Act, R.S.C. 1985, c. N-5 and sections 486.4 of the Criminal Code, R.S.C. 1985, c. C-46 remains in effect. No person shall publish or broadcast or transmit in any way any information that could identify any person described in these proceedings before the Court Martial Appeal Court of Canada as being a complainant A.L. or the Appellant J.L.

REASONS FOR JUDGMENT

BY THE COURT

1This appeal arises in the context of the conviction of a 17-year-old member of the reserve force and engages the issue of whether persons under the age of 18 benefit from the presumption of diminished moral culpability when charged and prosecuted for service offences in the military justice system (MJS). The appellant, J.L., challenges the constitutionality of the National Defence Act, R.S.C. 1985, c. N-5("NDA"), contending that it is inconsistent with the principle of fundamental justice entitling young persons to a presumption of diminished moral culpability. He submits that young military members cannot be exempted from the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA), which embodies that principle.

2The military judge initially dismissed J.L.’s challenge to her jurisdiction to hear the trial, in reasons indexed at: R. v. J.L., 2021 CM 2004 (JL1). After a trial, she convicted J.L. of sexual assault and behaving in a disgraceful manner, pursuant to sections 130 and 93 of the NDA, in reasons indexed at: R. v. J.L., 2021 CM 2019 (JL2).

3After conviction and prior to sentencing, J.L. filed an application challenging the constitutionality of the sentencing provisions in the NDAas they apply to young persons. The military judge concluded that the presumption of diminished moral responsibility applied, in reasons indexed at: R. v. J.L., 2023 CM 2010 (JL3). She read down section 60 and other provisions of the NDA, to exclude jurisdiction over a young military person where the military judge lacked the discretion to avoid the imposition of a Criminal Records Act, R.S.C. 1985, c. C-47 consequence if the young military member were convicted. The remedy she granted to J.L. was an absolute discharge. J.L. appeals that decision and the prosecution cross-appeals.

4For the reasons that follow, we would dismiss the cross-appeal. We would read down section 60(1) of the NDA as it applies to young military members to exclude all service offences outlined in Division II of Part III of the NDA, except those set out in section 249.27, offences for which a military judge, upon conviction, retains the discretion to impose a sentence that avoids a Criminal Records Act consequence.We would allow the defence appeal to the extent that we would enter a stay of proceedings on the charge.

I. Background

5On January 31, 2020, J.L. was charged with one count of sexual assault punishable under section 130 of the NDA, contrary to section 271 of the Criminal Code, R.S.C. 1985, c. C-46, and one count of behaving in a disgraceful manner punishable under section 93 of the NDA.

6J.L. and the complainant, A.L., were both 17-years-old and were serving as non-commissioned members of the reserve force at the time of the offences. J.L. was a young person within the meaning of the YCJA. On the evening of May 8, 2019, A.L. and J.L. were socializing with others at the “smoke pit” and in the lobby of the accommodations building on the military base.

7Shortly after midnight, on May 9, 2019, A.L. decided to go to bed and went to her room. Unbeknownst to her, J.L. followed. She was placing the sheets on her bed and heard the door close. She turned around and J.L. was standing in her room. She asked him what he was doing there. She took a couple of steps forward to open the door. He took a couple of steps towards her, away from the door, and then pushed her up against a ladder. J.L. had his arms on both rungs of the ladder and, using his body weight, pinned her against the ladder. There was a significant size and weight difference between them. J.L. tried to kiss her. A.L. told him to stop multiple times. She was finally able to push him away and told him to get out. Undaunted, J.L. approached her from behind and wrapped his arms around her body and then kissed her neck, leaving a mark. She gave him three elbow blows to the gut and told him to, “get the fuck out” before he would leave. She locked the door behind him.

8A.L. reported the incident to the military police (MP) on May 17, 2019, and charges eventually followed.

9The military judge convicted J.L. on both charges on September 17, 2021. He was absolutely discharged on both charges on April 4, 2023.

II. Judgments of the Military Judge

JL 1: Application Challenging the Court Martial’s Jurisdiction to Try a Young Person

10At the beginning of the trial, J.L. brought an application seeking a “termination of the proceedings” based on a lack of jurisdiction of the Court Martial. Alternatively, he sought a declaration that Part III of the NDA, which contains the Code of Service Disciple (CSD), is of no force and effect with respect to a young person charged with Criminal Code offences as it violates section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter). The remedy sought for J.L. on the constitutional challenge was a stay of proceedings.

11J.L. argued that section 14 of the YCJA confers exclusive jurisdiction for young persons to youth courts subject only to the provisions of the Contraventions Act, S.C. 1992, c. 47, and the NDA. J.L. relied upon section 71 of the NDA, which confers concurrent jurisdiction on civilian courts to try Criminal Code offences, contending that since the NDAincludes the jurisdiction of any civil court, the YCJA maintains exclusive jurisdiction.

12With respect to the constitutional challenge, J.L. argued that the CSD infringed section 7 of the Charter. He contended that the CSD is inconsistent with the principle of fundamental justice entitling young persons to a presumption of diminished moral culpability, given that young military members are treated as adults. The CSD, at sections 55–249.27 of the NDA, forms the basis of the MJS. It sets out who is subject to the MJS and establishes service offences and punishments. We will use both CSD and NDAinterchangeably to refer to the legislation that is the subject of J.L.’s constitutional challenge. Specifically, J.L. sought a declaration of invalidity of sections 60(1), 130(2)(a), 139, 196.14, 203.1 to 203.4, 220, 227.01, 249.27 of the NDA and article 105.08 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) as stated in the Notice of Constitutional Question.

13J.L. did not challenge the summary infraction system under the CSD where minor breaches of discipline are addressed outside the Court Martial system.

14The application proceeded on an Agreed Statement of Facts (ASOF) about the procedures followed in the case, reproduced at paragraph 3 of JL1. The ASOF included:

• (a)the alleged offences took place on or about 9 May 2019;
• (b)Private J.L. was […] 17 years old on the date of the alleged offences in May 2019 as well as when the military police sought a statement from him in August 2019;
• (c)on 17 May 2019, the complainant [gave a statement to military police]. This statement of the complainant is documented in the General Occurrence (GO) # 2019-13107;
• (d)on 2, 6, 7 and 9 August 2019 the Canadian Forces National Investigation Services (CFNIS) telephoned Private J.L. to arrange a voluntary interview with him. During the 2 August 2019 call, he was advised that he could consult his chain of command or a legal counsel as to what he should do. He was not advised at any time that he could consult a parent, an adult relative, or any other appropriate adult chosen by him. He was not advised at any time that should he choose to participate in a voluntary interview, he could have a counsel and a relative present during the interview. At no point were the parents, relatives or any other appropriate adult chosen by the young person made aware of the proceedings against him by the chain of command or prosecution;
• (e)the CFNIS General Occurrence hardcopy GO# 2019-13107, covering the alleged offences, contains the following statement at page 61: “[Addressees] are advised that this file contains the identity of a young person, which by law, must be protected from inadequate disclosure”;
• (f)the full name of Private J.L., his service number, the name of the unit in which he serves, as well as the details of the alleged offences appear in a Record of Disciplinary Proceeding (RDP) dated 14 August 2019, produced by the chain of command. RDPs are public documents and are subject to orders restricting publication issued by the Court;
• (g)the name of Private J.L., his service number, the name of the unit in which he serves, as well as the details of the alleged offences appear in a charge sheet dated 31 January 2020, produced by the Director of military prosecution. Charge sheets are public documents subject to orders restricting publication issued by the Court;
• (h)in early March 2020, the defence counsel of Private J.L. brought to the attention of the prosecution his concerns with the fact that the RDP and the charge sheet contained personal information about the accused. He felt that since the accused was a minor at the time of the alleged offences, his identity should be protected;
• (i)on 9 March 2020, during a teleconference with the Acting Chief Military Judge (A/CMJ), the defence counsel indicated his intention to submit an application, among others, requesting an order restricting publication from the Court to protect the identity of the accused. On 9 April 2020, the prosecution indicated that they were most likely going to support the request for an order restricting publication, especially if it took a temporary form while the military judge decides on the merits of the holistic arguments. Further, the prosecution urged the defence counsel of Private J.L. to proceed immediately with this application, but the latter insisted on submitting this application along with other more complex applications;
• (j)the alleged offences are not part of a pattern of repeated, serious or violent offences;
• (k)the circumstances of the alleged offences, if committed by an adult, would not justify a punishment of two years or more of imprisonment;
• (l)as of the filing of the ASOF, the prosecution had not discussed extrajudicial sanctions with the accused’s defence counsel; and
• (m)no psychosocial services have been provided by governmental authorities to the accused following the investigation or the laying of charges, nor was he referred to a child welfare agency.

15If convicted, J.L. was liable for a sentence of up to ten years’ imprisonment and a criminal record, as well as being ordered to provide DNA samples and be subject to registration pursuant to the Sex Offender Information Registration Act, S.C. 2004, c. 10 (SOIRA).

16On March 5, 2021, in JL1, the military judge held that the YCJA does have exclusive jurisdiction to try young persons charged with criminal offences, but with two exceptions—one of which is the NDA. The military judge concluded that the NDA provides jurisdiction to courts martial to try J.L. notwithstanding his status as a young person. She found that the procedural safeguards available in the NDA were sufficient to address a young person’s diminished moral culpability. We will review these procedures in more detail below.

17The military judge dismissed J.L.’s application and gave him an opportunity to make further submissions regarding the constitutionality of sentencing provisions in the NDA, if the case moved to the sentencing phase. The military judge held that before the Court could engage in assessing the constitutional validity of the sentencing provisions, sufficient adjudicative facts were required to trigger J.L.’s Charter rights. In JL1, a preliminary application, the charges had not yet been heard on the merits so therights flowing from the sentencing process were not yet engaged.

JL 2: The Trial

18On September 17, 2021, in JL2, the military judge found J.L. guilty on both charges.

JL 3: Application Challenging the Constitutionality of the Sentencing Provisions of the NDA

19On September 16, 2022, in advance of sentencing, J.L. filed an application challenging the constitutionality of the following provisions of the NDA:

• (a)section 60(1) (persons subject to the CSD);
• (b)section 139 (scale of punishments);
• (c)section 196.14 (requirement to provide a DNA sample on conviction);
• (d)sections 203.1-203.4 (purposes and principles of sentencing), 220 (committal of service convicts to prison);
• (e)section 227.01 (requirement to register pursuant to SOIRA); and
• (f)section 249.27 (exemption from a criminal record with respect to certain offences).

20J.L. contended that these provisions, as well as article 105.08 of the QR&O(requirement to advise an accused of a right to counsel), violate section 7 of the Charter, because they automatically subject young persons, who are serving under the CAF, to the adult sentencing provisions of the CSD. Those sections, he argued, were inconsistent with the principle of fundamental justice entitling young persons to a presumption of diminished moral culpability.

21The military judge engaged in a comparative analysis of the YCJAand NDA. She affirmed her conclusion in JL1 that trying a young military member in the military justice system does not in itself offend that person’s Charterrights. She noted that “[o]verall, young military members receive more extensive rights when they are appearing at a court martial than young people receive under the YCJA”: at para. 89. The judge found that there is no requirement in the NDAto send young persons to adult penitentiaries if imprisonment is imposed, and that young military members can be successfully rehabilitated through their chain of command. However, she identified the fundamental issue in J.L.’s application as “whether the NDA sentencing construct permits a military judge to give effect to a young member’s fundamental rights on sentencing”: at para. 95.

22The military judge concluded, at paragraphs 121, 122 and 124 of JL3, that the totality of the sentencing regime violated section 7 and was not saved by section 1 of the Charter:

[121] Although the sentencing construct at large provides military judges with significant guidance and discretion, the crux of the problem lies in the mandatory nature of those NDA provisions which directly obstruct the ability of military judges to give effect to the fact that young persons are presumed to have less moral blameworthiness and culpability than adults.

[122] Consequently, with respect to the case at bar, I find that the totality of the sentencing regime set out within the military justice system is inconsistent with the presumption of diminished moral culpability for young persons, a principle of fundamental justice.

[124] The important distinction is that in J.L1, I did not find that being tried under the military justice system to be the essence of the problem, but rather, I find that disconnect lies at the sentencing stage with respect to those provisions that do not permit young persons to be provided the presumption of diminished moral culpability to which they are owed.

23The military judge granted, in part, J.L.’s application and held that reading down section 60 would limit the violations of young persons’ privacy rights associated with the mandatory imposition of DNA warrants, SOIRA orders and criminal records. Accordingly, section 60 would only provide jurisdiction to try young persons for summary infractions and those strictly military services offences identified in paragraph 249.27(1)(a).

24She concluded as follows:

[141] I find it necessary to read down section 60 of the NDA, butonly to the extent that the provision subjects young persons to be charged, tried, and sentenced at courts martial for Criminal Code offences and those few NDA offences that are not set out at paragraph 249.27(1)(a) of the NDA and that this reading down must be limited to this inconsistency only.

[142] I am aware that in J.L.1, I found that the procedural aspects of the trial were Charter compliant, but now, considering the identified problems with the sentencing provisions, I may now read section 60 down prospectively to ensure that other young persons do not find themselves in the same situation on sentencing.

[143] With respect to charges being pursued against young persons, until the deficiencies in the sentencing regime are appropriately corrected to protect a young person’s rights, I find that section 60 of the NDA only provides jurisdiction to try young persons for summary infractions and those strictly military service offences identified in paragraph 249.27(1)(a) of the NDA. By limiting the scope of the jurisdiction set out at section 60, it limitsthe violations of a young person’s rights that flow from the violation of their privacy interests associated with the mandatory imposition of DNA warrants, SOIRA orders and criminal records. Similarly, given that Criminal Code offences could not be tried until the shortcomings are rectified, there would be no direct conflict with mandatory minimum penalties that might flow from some of the Criminal Code convictions.

[Emphasis added]

25Thus, in JL1, the judge concluded that she had the jurisdiction to try J.L. at a Court Martial. In JL3, the military judge concluded that despite that jurisdiction, there was no lawful basis on which to impose a sentence once convicted. Once she struck down the sentencing regime in the NDA, she concluded, prospectively, that there was no jurisdiction to try a young military member within the military justice system for Criminal Code offences and those few NDA offences that are not set out at paragraph 249.27(1)(a) of the NDA. She granted J.L. the personal remedy of an absolute discharge.

26J.L. appeals his conviction and sentence. He argues that the military judge erred in law by narrowly defining the scope of the NDA, by limiting the scope of the remedy and failing to interpret section 60 of the NDA to exclude youth from the jurisdiction of the NDA for all offences.

27The prosecution cross-appeals, contending that the military judge erred in law by finding that s. 60 of the NDA violates the principle of the presumption of diminished moral culpability because the principle does not extend to the NDA.

III. Legislative Framework

28The following legislation is engaged in this appeal:

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

Rights and freedoms in Canada

“Droits et libertés au Canada ”

1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

“1 ”“La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d’une société libre et démocratique.”

Life, liberty and security of person

“Vie, liberté et sécurité”

7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

“7 ”“Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale.”

Enforcement of guaranteed rights and freedoms

“Recours en cas d’atteinte aux droits et libertés ”

24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

“24 (1) ”“Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s’adresser à un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu égard aux circonstances.”

Primacy of Constitution of Canada

“Primauté de la Constitution du Canada ”

52 (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

“52 (1) ”“La Constitution du Canada est la loi suprême du Canada; elle rend inopérantes les dispositions incompatibles de toute autre règle de droit.”

Youth Criminal Justice Act, S.C. 2002, c. 1.

“Policy for Canada with respect to young persons ”

“Politique canadienne à l’égard des adolescents ”

3 (1) The following principles apply in this Act:

“3 (1)”“ Les principes suivants s’appliquent à la présente loi : ”

(a) the youth criminal justice system is intended to protect the public by

“a) ”“le système de justice pénale pour adolescents vise à protéger le public de la façon suivante :”

(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person

“(i) ”“obliger les adolescents à répondre de leurs actes au moyen de mesures proportionnées à la gravité de l’infraction et au degré de responsabilité,”

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and

“(ii) ”“favoriser la réadaptation et la réinsertion sociale des adolescents ayant commis des infractions,”

(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;

“(iii) ”“contribuer à la prévention du crime par le renvoi des adolescents à des programmes ou à des organismes communautaires en vue de supprimer les causes sous-jacentes à la criminalité chez ceux-ci;”

(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

“b) ”“le système de justice pénale pour les adolescents doit être distinct de celui pour les adultes, être fondé sur le principe de culpabilité morale moins élevée et mettre l’accent sur :”

(i) rehabilitation and reintegration

“(i) ”“leur réadaptation et leur réinsertion sociale,”

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity

“(ii) ”“une responsabilité juste et proportionnelle, compatible avec leur état de dépendance et leur degré de maturité,”

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected

“(iii) ”“la prise de mesures procédurales supplémentaires pour leur assurer un traitement équitable et la protection de leurs droits, notamment en ce qui touche leur vie privée,”

“(iv) ”“timely intervention that reinforces the link between the offending behaviour and its consequences, and”

“(iv) ”“la prise de mesures opportunes qui établissent clairement le lien entre le comportement délictueux et ses conséquences,”

“(v) ”“the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;”

“(v) ”“la diligence et la célérité avec lesquelles doivent intervenir les personnes chargées de l’application de la présente loi, compte tenu du sens qu’a le temps dans la vie des adolescents;”

“(c) ”“within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should”

“c) ”“les mesures prises à l’égard des adolescents, en plus de respecter le principe de la responsabilité juste et proportionnelle, doivent viser à :”

“(i) ”“reinforce respect for societal values,”

“(i) ”“renforcer leur respect pour les valeurs de la société,”

“(ii) ”“encourage the repair of harm done to victims and the community,”

“(ii) ”“favoriser la réparation des dommages causés à la victime et à la collectivité,”

“(iii) ”“be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and”

“(iii) ”“leur offrir des perspectives positives, compte tenu de leurs besoins et de leur niveau de développement, et, le cas échéant, faire participer leurs père et mère, leur famille étendue, les membres de leur collectivité et certains organismes sociaux ou autres à leur réadaptation et leur réinsertion sociale,”

“(iv)”“ respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and”

“(iv) ”“prendre en compte tant les différences ethniques, culturelles, linguistiques et entre les sexes que les besoins propres aux adolescents autochtones et à d’autres groupes particuliers d’adolescents;”

“(d) ”“special considerations apply in respect of proceedings against young persons and, in particular,”

“d) ”“des règles spéciales s’appliquent aux procédures intentées contre les adolescents. Au titre de celles-ci :”

“(i) ”“young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms,”

“(i) ”“les adolescents jouissent, et ce personnellement, de droits et libertés, notamment le droit de se faire entendre dans le cadre des procédures conduisant à des décisions qui les touchent — sauf la décision d’entamer des poursuites — et de prendre part à ces procédures, ces droits et libertés étant assortis de mesures de protection spéciales,”

“(ii) ”“victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system,”

“(ii) ”“les victimes doivent être traitées avec courtoisie et compassion, sans qu’il ne soit porté atteinte à leur dignité ou à leur vie privée, et doivent subir le moins d’inconvénients possible du fait de leur participation au système de justice pénale pour les adolescents,”

(iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and

“(iii) ”“elles doivent aussi être informées des procédures intentées contre l’adolescent et avoir l’occasion d’y participer et d’y être entendues,”

(iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.

“(iv) ”“les père et mère de l’adolescent doivent être informés des mesures prises, ou des procédures intentées, à l’égard de celui-ci et être encouragés à lui offrir leur soutien.”

Act to be liberally construed

“Souplesse d’interprétation ”

3 (2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).

“3 (2) ”“La présente loi doit faire l’objet d’une interprétation large garantissant aux adolescents un traitement conforme aux principes énoncés au paragraphe (1).”

Exclusive jurisdiction of youth justice court

“Compétence exclusive du tribunal ”

14 (1) Despite any other Act of Parliament but subject to the Contraventions Act and the National Defence Act, a youth justice court has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he or she was a young person, and that person shall be dealt with as provided in this Act.

“14 (1) ”“Malgré toute autre loi fédérale, mais sous réserve de la Loi sur les contraventions et de la Loi sur la défense nationale, le tribunal a compétence exclusive pour toute infraction qu’une personne aurait commise au cours de son adolescence; la personne bénéficie alors des dispositions de la présente loi.”

Identity of offender not to be published

“Publication interdite ”

110 (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

“110 (1) ”“Sous réserve des autres dispositions du présent article, il est interdit de publier le nom d’un adolescent ou tout autre renseignement de nature à révéler qu’il a fait l’objet de mesures prises sous le régime de la présente loi.”

Other provisions of the YCJA are engaged but will be addressed below.

National Defence Act, R.S.C. 1985, c. N-5

Code of Service Discipline

“Code de discipline militaire ”

Purpose

“Objet ”

55 (1) The purpose of the Code of Service Discipline is to maintain the discipline, efficiency and morale of the Canadian Forces.

“55 (1)”“ Le code de discipline militaire a pour objet de maintenir la discipline, l’efficacité et le moral des Forces canadiennes. ”

Clarification

“Précision ”

55 (2) For greater certainty, the behaviour of persons who are subject to the Code of Service Discipline relates to the discipline, efficiency and morale of the Canadian Forces even when those persons are not on duty, in uniform or on a defence establishment.

“55 (2)”“ Il est entendu que le comportement des justiciables du code de discipline militaire touche à la discipline, à l’efficacité et au moral des Forces canadiennes, même lorsque ces justiciables ne sont pas de service, en uniforme ou dans un établissement de défense. ”

“Persons subject to Code of Service Discipline ”

“Personnes assujetties au code de discipline militaire ”

60 (1) The following persons are subject to the Code of Service Discipline:

“60 (1)”“ Sont seuls justiciables du code de discipline militaire : ”

(a) an officer or non-commissioned member of the regular force;

“a)”“ les officiers ou militaires du rang de la force régulière; ”

(b) an officer or non-commissioned member of the special force;

“b)”“ les officiers ou militaires du rang de la force spéciale; ”

(c) an officer or non-commissioned member of the reserve force when the officer or non-commissioned member is

“c)”“ les officiers ou militaires du rang de la force de réserve se trouvant dans l’une ou l’autre des situations suivantes : ”

(i) undergoing drill or training, whether in uniform or not

“(i)”“ en période d’exercice ou d’instruction, qu’ils soient en uniforme ou non, ”

(ii) in uniform

“(ii)”“ en uniforme, ”

(iii) on duty

“(iii)”“ de service, ”

(iv) [Repealed, 1998, c. 35, s. 19]

“(iv)”“ [Abrogé, 1998, ch. 35, art. 19] ”

(v) called out under Part VI in aid of the civil power

“(v)”“ appelés, dans le cadre de la partie VI, pour prêter main-forte au pouvoir civil, ”

(vi) called out on service

“(vi)”“ appelés en service, ”

(vii) placed on active service

“(vii)”“ en service actif, ”

(viii) in or on any vessel, vehicle or aircraft of the Canadian Forces or in or on any defence establishment or work for defence

“(viii)”“ à bord d’un navire, véhicule ou aéronef des Forces canadiennes ou dans — ou sur — tout établissement de défense ou ouvrage pour la défense, ”

(ix) serving with any unit or other element of the regular force or the special force, or

“(ix)”“ en service dans une unité ou un autre élément de la force régulière ou de la force spéciale, ”

(x) present, whether in uniform or not, at any drill or training of a unit or other element of the Canadian Forces;

“(x)”“ présents, en uniforme ou non, à l’exercice ou l’instruction d’une unité ou d’un autre élément des Forces canadiennes; ”

(d) subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person who, pursuant to law or pursuant to an agreement between Canada and the state in whose armed forces the person is serving, is attached or seconded as an officer or non-commissioned member to the Canadian Forces;

“d) ”“sous réserve des exceptions, adaptations et modifications que le gouverneur en conseil peut prévoir par règlement, les personnes qui, d’après la loi ou un accord entre le Canada et l’État dans les forces armées duquel elles servent, sont affectées comme officiers ou militaires du rang aux Forces canadiennes ou détachées auprès de celles-ci;”

(e) a person, not otherwise subject to the Code of Service Discipline, who is serving in the position of an officer or non-commissioned member of any force raised and maintained outside Canada by Her Majesty in right of Canada and commanded by an officer of the Canadian Forces;

“e) ”“les personnes qui, normalement non assujetties au code de discipline militaire, servent comme officiers ou militaires du rang dans toute force levée et entretenue à l’étranger par Sa Majesté du chef du Canada et commandée par un officier des Forces canadiennes;”

(f) a person, not otherwise subject to the Code of Service Discipline, who accompanies any unit or other element of the Canadian Forces that is on service or active service in any place;

“f) ”“les personnes qui, normalement non assujetties au code de discipline militaire, accompagnent quelque unité ou autre élément des Forces canadiennes en service, actif ou non, dans un lieu quelconque;”

(g) subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person attending an institution established under section 47;

“g) ”“sous réserve des exceptions, adaptations et modifications que le gouverneur en conseil peut prévoir par règlement, les personnes fréquentant un établissement créé aux termes de l’article 47;”

(h) an alleged spy for the enemy;

“h) ”“les présumés espions pour le compte de l’ennemi;”

(i) a person, not otherwise subject to the Code of Service Discipline, who, in respect of any service offence committed or alleged to have been committed by the person, is in civil custody or in service custody; and

“i) ”“les personnes qui, normalement non assujetties au code de discipline militaire, sont sous garde civile ou militaire pour quelque infraction d’ordre militaire qu’elles ont — ou auraient — commise;”

(j) a person, not otherwise subject to the Code of Service Discipline, while serving with the Canadian Forces under an engagement with the Minister whereby the person agreed to be subject to that Code.

“j) ”“les personnes qui, normalement non assujetties au code de discipline militaire, servent auprès des Forces canadiennes aux termes d’un engagement passé avec le ministre par lequel elles consentent à relever de ce code.”

No interference with civil jurisdiction

“Intégralité de la compétence ”

71 Subject to section 66, nothing in the Code of Service Discipline affects the jurisdiction of any civil court to try a person for any offence triable by that court.

“71 ”“Sous réserve de l’article 66, le code de discipline militaire n’a pas pour effet d’empêcher un tribunal civil de juger toute infraction pour laquelle il a compétence.”

Service trial of civil offences

“Procès militaire pour infractions civiles ”

130 (1) An act or omission

“130 (1) ”“Constitue une infraction à la présente section tout acte ou omission :”

(a) that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, or

“a) ”“survenu au Canada et punissable sous le régime de la partie VII de la présente loi, du Code criminel ou de toute autre loi fédérale;”

(b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part VII, the Criminal Code or any other Act of Parliament

“b) ”“survenu à l’étranger mais qui serait punissable, au Canada, sous le régime de la partie VII de la présente loi, du Code criminel ou de toute autre loi fédérale.”

is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2).

“Quiconque en est condamné encourt la peine prévue au paragraphe (2). ”

Punishment

“Peine ”

130 (2) Subject to subsection (3), if a court martial convicts a person under subsection (1), it shall

“130 (2) ”“Sous réserve du paragraphe (3), la peine infligée à quiconque est condamné aux termes du paragraphe (1) est :”

(a) if the conviction was in respect of an offence

“a) ”“la peine minimale prescrite par la disposition législative correspondante, dans le cas d’une infraction :”

(i) committed in Canada under Part VII, the Criminal Code or any other Act of Parliament and for which a minimum punishment is prescribed, or

“(i) ”“commise au Canada en violation de la partie VII de la présente loi, du Code criminel ou de toute autre loi fédérale et pour laquelle une peine minimale est prescrite,”

(ii) committed outside Canada under section 235 of the Criminal Code

“(ii) ”“commise à l’étranger et prévue à l’article 235 du Code criminel;”

impose a punishment in accordance with the enactment prescribing the minimum punishment for the offence; or

(b) in any other case

“b) ”“dans tout autre cas :”

(i) impose the punishment prescribed for the offence by Part VII, the Criminal Code or that other Act, or

“(i) ”“soit la peine prévue pour l’infraction par la partie VII de la présente loi, le Code criminel ou toute autre loi pertinente,”

(ii) impose dismissal with disgrace from Her Majesty’s service or less punishment.

“(ii) ”“soit, comme peine maximale, la destitution ignominieuse du service de Sa Majesté.”

Code of Service Discipline applies

“Application du code de discipline militaire ”

130 (3) All provisions of the Code of Service Discipline in respect of a punishment of imprisonment for life, for two years or more or for less than two years, and a fine, apply in respect of punishments imposed under paragraph (2)(a) or subparagraph (2)(b)(i).

“130 (3) ”“Toutes les dispositions du code de discipline militaire visant l’emprisonnement à perpétuité, l’emprisonnement de deux ans ou plus, l’emprisonnement de moins de deux ans et l’amende s’appliquent à l’égard des peines infligées aux termes de l’alinéa (2)a) ou du sous-alinéa (2)b)(i).”

Saving provision

“Disposition restrictive ”

130 (4) Nothing in this section is in derogation of the authority conferred by other sections of the Code of Service Discipline to charge, deal with and try a person alleged to have committed any offence set out in sections 73 to 129 and to impose the punishment for that offence described in the section prescribing that offence.

“130 (4) ”“Le présent article n’a pas pour effet de porter atteinte aux pouvoirs conférés par d’autres articles du code de discipline militaire en matière de poursuite et de jugement des infractions prévues aux articles 73 à 129.”

Scale of punishments

“Échelle des peines ”

139 (1) The following punishments may be imposed in respect of service offences and each of those punishments is a punishment less than every punishment preceding it:

“139 (1) ”“Les infractions d’ordre militaire sont passibles des peines suivantes, énumérées dans l’ordre décroissant de gravité :”

(a) imprisonment for life;

“a) ”“emprisonnement à perpétuité;”

(b) imprisonment for two years or more;

“b) ”“emprisonnement de deux ans ou plus;”

(c) dismissal with disgrace from Her Majesty’s service;

“c) ”“destitution ignominieuse du service de Sa Majesté;”

(d) imprisonment for less than two years;

“d) ”“emprisonnement de moins de deux ans;”

(e) dismissal from Her Majesty’s service;

“e) ”“destitution du service de Sa Majesté;”

(f) detention;

“f) ”“détention;”

(g) reduction in rank;

“g)”“ rétrogradation;”

(h) forfeiture of seniority;

“h) ”“perte de l’ancienneté;”

(i) severe reprimand;

“i) ”“blâme;”

(j) reprimand;

“j) ”“réprimande;”

(k) fine; and

“k) ”“amende;”

(l) minor punishments.

“l) ”“peines mineures.”

Definition of less punishment

“Interprétation ”

139 (2) Where a punishment for an offence is specified by the Code of Service Discipline and it is further provided in the alternative that on conviction the offender is liable to less punishment, the expression less punishment means any one or more of the punishments lower in the scale of punishments than the specified punishment.

“139 (2) ”“Lorsque le code de discipline militaire prévoit que l’auteur d’une infraction, sur déclaration de culpabilité, encourt comme peine maximale une peine donnée, l’autorité compétente peut lui imposer, au lieu de celle-ci, toute autre peine qui la suit dans l’échelle des peines.”

Order — primary designated offences

“Ordonnance : infractions primaires ”

196.14 (1) A court martial shall make an order in the prescribed form authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from a person who is found guilty of an offence committed at any time, including before June 30, 2000, if that offence is a primary designated offence within the meaning of paragraph (a) of the definition primary designated offence in section 196.11 when the person is sentenced.

“196.14 (1) ”“En cas de déclaration de culpabilité à l’égard d’une infraction qui a été commise même avant le 30 juin 2000 et qui, à la date du prononcé de la peine, était une infraction primaire au sens de l’alinéa a) de la définition de ce terme à l’article 196.11, la cour martiale doit rendre une ordonnance — rédigée selon le formulaire réglementaire — autorisant le prélèvement sur l’intéressé du nombre d’échantillons de substances corporelles jugé nécessaire pour analyse génétique.”

Fundamental purpose of sentencing

“Objectif essentiel ”

203.1 (1) The fundamental purpose of sentencing is to maintain the discipline, efficiency and morale of the Canadian Forces.

“203.1 (1) ”“La détermination de la peine a pour objectif essentiel de maintenir la discipline, l’efficacité et le moral des Forces canadiennes.”

Objectives

“Objectifs ”

203.1 (2) The fundamental purpose of sentencing is to be achieved by imposing just punishments that have one or more of the following objectives:

“203.1 (2) ”“L’atteinte de cet objectif essentiel se fait par l’infliction de peines justes visant un ou plusieurs des objectifs suivants :”

(a) to promote a habit of obedience to lawful commands and orders;

“a) ”“renforcer le devoir d’obéissance aux ordres légitimes;”

(b) to maintain public trust in the Canadian Forces as a disciplined armed force;

“b) ”“maintenir la confiance du public dans les Forces canadiennes en tant que force armée disciplinée;”

(c) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

“c) ”“dénoncer les comportements illégaux et le tort causé par ceux-ci aux victimes ou à la collectivité;”

(d) to deter offenders and other persons from committing offences;

“d)”“ dissuader les contrevenants et autres personnes de commettre des infractions;”

(e) to assist in rehabilitating offenders;

“e) ”“favoriser la réinsertion sociale des contrevenants;”

(f) to assist in reintegrating offenders into military service;

“f) ”“favoriser la réinsertion des contrevenants dans la vie militaire;”

(g) to separate offenders, if necessary, from other officers or non-commissioned members or from society generally;

“g) ”“isoler, au besoin, les contrevenants des autres officiers et militaires du rang ou de la société en général;”

(h) to provide reparations for harm done to victims or to the community; and

“h) ”“assurer la réparation des torts causés aux victimes ou à la collectivité;”

(i) to promote a sense of responsibility in offenders and an acknowledgment of the harm done to victims or to the community.

“i) ”“susciter le sens des responsabilités chez les contrevenants, notamment par la reconnaissance des dommages causés à la victime ou à la collectivité.”

Fundamental principle of sentencing

“Principe fondamental ”

203.2 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

“203.2 ”“La peine est proportionnelle à la gravité de l’infraction et au degré de responsabilité du contrevenant.”

Other sentencing principles

“Principes de détermination de la peine ”

203.3 Sentences must be imposed in accordance with the following other principles:

“203.3 ”“La peine est infligée en conformité avec les autres principes suivants :”

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and aggravating circumstances include, but are not restricted to, evidence establishing that

“a) ”“l’adaptation de la peine aux circonstances aggravantes ou atténuantes liées à la perpétration de l’infraction ou à la situation du contrevenant, étant notamment considérés comme des circonstances aggravantes les éléments de preuve établissant que l’infraction, selon le cas :”

(i) the offender, in committing the offence, abused their rank or other position of trust or authority

“(i) ”“comporte une utilisation abusive de son grade ou un autre abus de confiance ou d’autorité,”

(ii) the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor

“(ii) ”“est motivée par des préjugés ou de la haine fondés sur des facteurs tels que la race, l’origine nationale ou ethnique, la langue, la couleur, la religion, le sexe, l’âge, la déficience mentale ou physique, l’orientation sexuelle ou l’identité ou l’expression de genre,”

(iii) the offender, in committing the offence, abused their spouse or common-law partner

“(iii) ”“comporte des mauvais traitements infligés par le contrevenant à son époux ou conjoint de fait,”

(iv) the offender, in committing the offence, abused a person under the age of 18 years

“(iv) ”“comporte des mauvais traitements infligés par le contrevenant à une personne âgée de moins de dix-huit ans,”

(v) the commission of the offence resulted in substantial harm to the conduct of a military operation

“(v)”“ a eu un effet nuisible important sur la conduite d’une opération militaire, ”

(vi) the offence was committed in a theatre of hostilities

“(vi) ”“a été commise sur un théâtre d’hostilités,”

(vii) the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

“(vii) ”“a été commise au profit ou sous la direction d’une organisation criminelle, ou en association avec elle,”

(viii) the offence was a terrorism offence;

“(viii) ”“est une infraction de terrorisme;”

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

“b) ”“l’harmonisation des peines, c’est-à-dire l’infliction de peines semblables à celles infligées à des contrevenants pour des infractions semblables commises dans des circonstances semblables;”

(c) an offender should not be deprived of liberty by imprisonment or detention if less restrictive punishments may be appropriate in the circumstances;

“c) ”“l’obligation, avant d’envisager la privation de liberté par l’emprisonnement ou la détention, d’examiner la possibilité de peines moins contraignantes lorsque les circonstances le justifient;”

(c.1) all available punishments, other than imprisonment and detention, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders;

“c.1) ”“l’examen, plus particulièrement en ce qui concerne les contrevenants autochtones, de toutes les peines substitutives qui sont raisonnables dans les circonstances et qui tiennent compte du tort causé aux victimes ou à la collectivité;”

(d) a sentence should be the least severe sentence required to maintain the discipline, efficiency and morale of the Canadian Forces; and

“d)”“ l’infliction de la peine la moins sévère possible qui permette de maintenir la discipline, l’efficacité et le moral des Forces canadiennes;”

(e) any indirect consequences of the finding of guilty or the sentence should be taken into consideration.

“e) ”“la prise en compte des conséquences indirectes du verdict de culpabilité ou de la sentence.”

Abuse of persons under age of 18

“Mauvais traitement — personne âgée de moins de dix-huit ans ”

203.4 When a court martial imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

“203.4 ”“La cour martiale qui détermine la peine à infliger pour une infraction qui constitue un mauvais traitement à l’égard d’une personne âgée de moins de dix-huit ans accorde une attention particulière aux objectifs de dénonciation et de dissuasion d’un tel comportement.”

Committal of service convicts

“Pénitencier pour les condamnés militaires ”

220 (1) A service convict whose punishment of imprisonment for life or for two years or more is to be put into execution shall as soon as practicable be committed to a penitentiary to undergo punishment according to law, except that a committing authority may, in accordance with regulations made by the Governor in Council, order that a service convict be committed to a service prison to undergo the punishment or any part of the punishment.

“220 (1) ”“Les condamnés militaires astreints à une peine d’emprisonnement à perpétuité ou de deux ans ou plus sont, lorsqu’elle est mise à exécution, envoyés le plus tôt possible dans un pénitencier pour la purger conformément à la loi. L’autorité incarcérante peut toutefois, aux termes des règlements pris par le gouverneur en conseil, ordonner qu’ils soient incarcérés dans une prison militaire pour y purger leur peine, en tout ou en partie.”

Committal when unexpired term less than two years

“Envoi au pénitencier pour incarcération inférieure à deux ans ”

220 (2) Where a committing authority orders the committal to a penitentiary of a service convict, part of whose punishment has been undergone in a service prison, the service convict may be so committed notwithstanding that the unexpired portion of the term of that punishment is less than two years.

“220 (2) ”“L’autorité incarcérante peut ordonner l’envoi dans un pénitencier d’un condamné militaire qui a déjà purgé une partie de sa peine dans une prison militaire, même si la portion restant à purger est inférieure à deux ans.”

Committal of service prisoners

“Prison militaire ”

220 (3) A service prisoner whose punishment of imprisonment for less than two years is to be put into execution shall as soon as practicable be committed to a civil prison to undergo punishment according to law, except that a committing authority may, in accordance with regulations made by the Governor in Council, order that a service prisoner be committed to a service prison or detention barrack to undergo the punishment or part thereof.

“220 (3) ”“Les prisonniers militaires astreints à une peine d’emprisonnement de moins de deux ans sont, lorsqu’elle est mise à exécution, envoyés le plus tôt possible dans une prison civile pour la purger conformément à la loi. L’autorité incarcérante peut toutefois, aux termes des règlements pris par le gouverneur en conseil, ordonner qu’ils soient incarcérés dans une prison militaire ou une caserne disciplinaire pour y purger leur peine, en tout ou en partie.”

Committal of service detainees

“Caserne disciplinaire ”

220 (4) A service detainee whose punishment of detention is to be put into execution shall as soon as practicable be committed to a detention barrack to undergo the punishment.

“220 (4) ”“Les détenus militaires astreints à une peine de détention sont, lorsqu’elle est mise à exécution, envoyés le plus tôt possible dans une caserne disciplinaire pour y purger leur peine.”

Order

“Ordonnance ”

227.01 (1) When a court martial imposes a sentence on a person for an offence referred to in paragraph (a) or (c) of the definition designated offence in section 227 or finds the person not responsible on account of mental disorder for such an offence, it shall make an order in the prescribed form requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 227.02.

“227.01 (1) ”“La cour martiale doit, lors du prononcé de la peine ou du verdict de non-responsabilité pour cause de troubles mentaux à l’égard d’une infraction visée aux alinéas a) ou c) de la définition de infraction désignée à l’article 227, enjoindre à la personne en cause, par ordonnance rédigée selon le formulaire réglementaire, de se conformer à la Loi sur l’enregistrement de renseignements sur les délinquants sexuels pendant la période applicable selon l’article 227.02.”

Convictions for certain offences

“Déclaration de culpabilité — infraction particulière ”

249.27 (1) A person who is convicted of any of the following offences, or who has been convicted of any of them before the coming into force of this section, has not been convicted of a criminal offence:

“249.27 (1)”“ Quiconque est condamné pour l’une ou l’autre des infractions ci-après, ou l’a été avant l’entrée en vigueur du présent article, n’est pas condamné pour une infraction criminelle :”

(a) an offence described in section 85, 86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 or 129 for which the offender is sentenced to one or more of the following punishments:

“a) ”“l’infraction désignée à l’un des articles 85, 86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 ou 129 et pour laquelle l’accusé a été condamné à l’une ou plusieurs des peines suivantes :”

(i) a severe reprimand

“(i)”“ blâme,”

(ii) a reprimand

“(ii) ”“réprimande,”

(iii) a fine not exceeding basic pay for one month, or

“(iii) ”“amende n’excédant pas un mois de solde de base,”

(iv) a minor punishment;

“(iv) ”“peines mineures;”

(b) an offence under section 130 that constitutes a contravention within the meaning of the Contraventions Act.

“b)”“ l’infraction prévue à l’article 130 qui est une contravention au titre de la Loi sur les contraventions. ”

Criminal Records Act

“Loi sur le casier judiciaire ”

249.27 (2) An offence referred to in paragraph (1)(a) or (b) does not constitute an offence for the purposes of the Criminal Records Act.

“249.27 (2) ”“L’infraction visée aux alinéas (1)a) ou b) ne constitue pas une infraction pour l’application de la Loi sur le casier judiciaire.”

Queen’s Regulations and Orders for the Canadian Forces

“105.08 – INFORMATION PROVIDED TO A PERSON ARRESTED OR DETAINED ”

“105.08 – RENSEIGNEMENTS À UNE PERSONNE ARRÊTÉE OU DÉTENUE ”

(1) Subject to paragraph (2), a person who is arrested or detained shall, without delay, be informed:

“(1) Sous réserve de l'alinéa (2), une personne mise en état d'arrestation ou détenue doit, sans délai, être prévenue à la fois : ”

(a)that the person is arrested or detained;

“a”“) qu'elle est en état d'arrestation ou détenue; ”

(b)of the reason for the arrest or detention;

“b”“) des motifs pour lesquels elle est en état d'arrestation ou détenue; ”

(c)that the person has the right to retain and instruct counsel without delay;

“c”“) qu'elle a le droit d'avoir recours immédiatement à l'assistance d'un avocat; ”

(d)that the person has the right to have access to free and immediate advice from duty counsel provided by the Director of Defence Counsel Services or other duty counsel in the jurisdiction where the person is arrested or detained, and how duty counsel may be contacted; and

“d”“) qu'elle a le droit d'avoir recours immédiatement et gratuitement aux conseils d'un avocat de service fourni par le directeur du service d'avocats de la défense ou par tout autre avocat de service responsable dans la juridiction où la personne est arrêtée ou détenue, et de la façon de communiquer avec l'avocat de service; ”

(e)of the existence and availability of Legal Aid plans, where applicable.

“e”“) de l'existence et de la disponibilité des régimes d'aide juridique, s'il y a lieu. ”

(2)When circumstances, such as the unconsciousness of the person arrested or detained, or the person’s attempted escape from custody, make it impossible to comply with paragraph (1), the person arrested or detained shall be given the information as soon as it is possible to do so.

“(2) À moins qu'il n'existe des circonstances qui empêchent de se conformer à l'alinéa (1) comme l'inconscience de la personne arrêtée ou détenue ou une tentative de fuite de sa part, les renseignements prévus à cet alinéa doivent être communiqués à la personne arrêtée ou détenue dès qu'il est possible de le faire. ”

(3)The person arrested or detained shall be given an opportunity to contact counsel as soon as practical under the circumstances.

“(3) Dès que les circonstances le permettent, il faut offrir à la personne mise en état d'arrestation ou détenue l'occasion de communiquer avec un avocat. ”

29Prior to identifying and addressing the issues, it will be helpful to provide an overview of, and address the interplay between, the military justice and youth criminal justice systems.

IV. The Interplay between the Military Justice and Youth Criminal Justice Systems

The Military Justice System

30The military justice system is a separate, self-contained, system of justice that has operated parallel to the civilian justice system “[s]ince the earliest days of organized military forces in post-Confederation Canada”: R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144 at para. 2. Distinct from the civilian justice system, the military justice system is designed to address the unique needs of the CAF and maintain“discipline, efficiency and morale in the military”: NDA, s. 55; R. v. Edwards, 2024 SCC 15 at para. 59; Stillman at para. 20.

31TheCode of Service Discipline (CSD),Part III of the NDA, forms the basis for the military justice system. Part III is comprised of sections 55 to 249.27. Division 1 contains the jurisdictional reach of the CSD, including the continuing and concurrent jurisdiction of the civil (i.e. non-military) court (s. 71). Division 1.1 encompasses sections 71.01 to 71.25 and engages victims’ rights. Division 2 addresses service offences and punishments, which includes what we will refer to as “purely military offences”, including, for example, offences by any person in the presence of the enemy, spying, mutiny, insubordination, and desertion. These offences are found in sections 72 to 129. Some of those offences attract significant penal sentences. Division 2 also incorporates all other offences punishable under any other Act of Parliament in section 130. Certain service offences listed in paragraph 249.27(1)(a), do not constitute criminal offences where upon conviction the service offender is sentenced to a prescribed punishment.

32Service infractions are dealt with summarily, whereas service offences are dealt with by a Court Martial before a military judge. A service offence is defined in section 2 of the NDA as “an offence under this Act, the Criminal Code or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline”.

33Section 130(1)(a) of the NDA, provides that offences under the Criminal Code or any other Act of Parliament are also service offences. The result is concurrent jurisdiction in the military justice system and the civilian criminal courts over those service offences that are not purely military offences (NDA, ss. 72–129).

34A service offence, wherever committed, is triable within the military justice system: NDA, s. 67, and a person subject to the CSD at the time of the alleged commission of a service offence may be charged, dealt with and tried at any time under CSD: NDA, s. 69. The ultimate purpose of the military justice system is to promote the operational effectiveness of the CAF. The history of the separate justice system is succinctly set out in Stillman at paragraphs 35–39:

(1) The Existence and Purpose of Canada’s Parallel System of Military Justice

[35]Canada’s military justice system has always been separate from the civilian justice system. “[D]eeply entrenched in our history” (Généreux, at p. 295), its purpose is to provide processes that will “assure the maintenance of discipline, efficiency and morale of the military” (Moriarity, at para. 46; see also Généreux, at p. 293).

[36] The military justice system is therefore designed to meet the unique needs of the military with respect to discipline, efficiency, and morale. As Lamer C.J. wrote in Généreux, “[t]o maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct” (p. 293). Further, “[r]ecourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military” (ibid.). And, while these purposes of the military justice system have remained consistent over the years, the complexion of the system itself has changed significantly over time in response to developments in law, military life, and society, more broadly.

(2) Early History

[37] Canadian military law traces its roots to the United Kingdom (see Office of the Judge Advocate General, Draft Internal Report — Court Martial Comprehensive Review, January 17, 2018 (online) (“CMCR Interim Report”), at p. 31, citing R. A. Macdonald, “The Trail of Discipline: The Historical Roots of Canadian Military Law” (1985), 1 JAG Journal 1, at pp. 6-7). “Shortly after Confederation, the Canadian Army was first organized under the Militia Act of 1868”, which served to incorporate the existing U.K. Army Act (see CMCR Interim Report,at p. 31, citing J. B. Fay, “Canadian Military Criminal Law: An Examination of Military Justice” (1975), 23 Chitty’s L.J. 120, at pp. 121-22). The Royal Canadian Navy and the Royal Canadian Air Force followed suit, drawing upon existing U.K. statutes for their respective disciplinary codes (ibid.).

[38] Until the NDA was enacted in 1950, control over military discipline was concentrated in the chain of command, consistent with the prevailing attitudes of the time that military discipline was the prerogative of commanders, and that “the soldier should learn to look to his officer alone for justice” (CMCR Interim Report, at p. 31, quoting C. Madsen, Another Kind of Justice: Canadian Military Law from Confederation to Somalia (1999), at p. 11). Charges that led to court martial (i.e., military court) proceedings originated within the forces, and the officers who formed part of the court martial that would try the case would decide the matter without necessarily having the assistance of a trained lawyer or judge (“judge advocate”) instructing them on the law (see CMCR Interim Report, at p. 31, citing R. A. Macdonald, Canada’s Military Lawyers (2002), at pp. 6-9). Nor could the accused generally appeal the verdict of a court martial.

[39] Hence, at this early stage of the Canadian military justice system’s development, the system was largely a “command-centric disciplinary tool” (CMCR Interim Report, at p. 51). The need for commanders to have access to “an instrument for dealing with serious misconduct by their personnel that would swiftly and strongly promote discipline” was seen as paramount (ibid.), and “the focus of a court martial was placed far more on discipline than on what we would now call justice” (ibid., at p. 32).

35Aspects of the military justice system have been repeatedly upheld on constitutional grounds based on the different purposes underlying it. In Stillman, the Court identified the main distinction between sentencing provisions in civilian court and in a military court at paragraphs 100–101:

[100] Fourthly, were serious civil offences committed by persons subject to the CSD to be streamed into the civilian justice system, sentencing decisions in those cases might not truly account for the seriousness of such offences, seen in light of the purposes of discipline, efficiency, and morale. As Cattanach J. recognized in MacKay v. Rippon, , [1978] 1 F.C. 233 (T.D.), “[m]any offences which are punishable under civil law take on a much more serious connotation as a service offence and as such warrant more severe punishment” (p. 236, quoted in Généreux, at p. 294). The proper maintenance of military discipline, efficiency, and morale may require a more severe response to misconduct than it would receive in the civilian justice system. Indeed, the fundamental purposes of sentencing in the military justice system differ from those in the civilian criminal justice system. These purposes, set out in s. 203.1(1) of the NDA, are (a) “to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale”; and (b) “to contribute to respect for the law and the maintenance of a just, peaceful and safe society”. Furthermore, s. 203.1(2) of the NDA stipulates that these purposes “shall be achieved by imposing just sanctions that have one or more of the following objectives”… [set out above]

[101] While some of these objectives are reflected in s. 718 of the Criminal Code (e.g., rehabilitating offenders), others are not (e.g., promoting a habit of obedience to lawful commands and orders). Thus, sentencing in the military justice system is guided by certain objectives that are unique to the military milieu. Extracting serious civil offences from this system would have the unfortunate consequence of eliminating these unique and important objectives from being considered in the sentencing process in these cases.

36In Stillman, the Court was examining the constitutionality of paragraph 130(1)(a) of the NDA in light of subsection 11(f) of the Charter, which guarantees every person charged with an offence carrying a punishment of at least five years’ imprisonment the right to the benefit of a jury trial, “except in the case of an offence under military law tried before a military tribunal” (Stillman at para. 125). The Court concluded that the military exception was valid and constitutional at paragraph 113:

[113] Our conclusion can be stated succinctly. Our jurisprudence establishes that Parliament has validly enacted s. 130(1)(a) of the NDA under the authority granted by s. 91(7) of the Constitution Act, 1867 (see MacKay, at p. 397). It also establishes that s. 130(1)(a) is not overbroad under s. 7 of the Charter, even absent a “military nexus” going beyond the accused’s military status (see Moriarity). It follows, therefore, that a serious civil offence tried as a service offence under s. 130(1)(a) — whether or not there is a heightened “military nexus” — qualifies as “an offence under military law” for the purposes of s. 11(f) of the Charter. Accordingly, where such an offence is tried before a military tribunal — as was the case for each of the accused persons in this instance — the military exception in s. 11(f) of the Charter is engaged. It follows that s. 130(1)(a) of the NDA is not inconsistent with s. 11(f) of the Charter, as it does not deprive a person who is lawfully entitled to a trial by jury of that right.

37As noted by the military judge, a person under the age of 18 may be enrolled in the CAF but only with the consent of a parent or guardian: NDA, s. 20(3). The applicable regulations provide for the enrollment of 17-year-olds but also provide for exceptions including the enrollment of 16-year-olds in the reserve force who are full time students (JL3 at para. 3; QR&O, art. 6.01).

38Upon enrolment, a person under the age of 18 becomes a member of the CAF. The responsibilities that flow from military service include becoming part of the profession of arms with an obligation to serve in the CAF until one is lawfully released, as prescribed under subsection 23(1) of the NDA. The only limitation upon the service of a young military member is prescribed in section 34 of the NDA: “a person who is under the age of eighteen years may not be deployed by the Canadian Forces to a theatre of hostilities.” Liability to perform any lawful duty is imposed on regular force members only. Reserve force members are obligated to train and are liable for callout but only as provided for in regulations.

39Under subsection 60(1) of the NDA, all regular force officers or non-commissioned members of the regular force are subject to the CSD at all times. All reserve force members, including young military members, are subject to the CSD in prescribed circumstances (when undergoing drill or training, in uniform, on duty, or in or on any defence establishment, for example). J.L. was a young military member serving in the reserve force and therefore subject to the jurisdiction of the MJS as per subsection 60(1)(c): JL3 at para. 5.

The Youth Criminal Justice System

40The YCJA establishes the youth criminal justice system. It applies to persons who are 12 years or older, but younger than eighteen at the time of committing an offence: YCJA, s. 2.

41In R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, the Court was faced with a provision in the YCJA that presumed the imposition of an adult sentence in certain circumstances. The Court concluded that the presumption of diminished moral culpability in relation to young persons charged with an offence is a principle of fundamental justice. In coming to that conclusion, the Court confirmed the importance of a separate criminal justice system for young persons in paragraph 3(1)(b) of the YCJA.

42The Court outlined the reasons for a separate criminal justice system for young persons at paragraphs 41–44:

[41] What the onus provisions do engage, in my view, is what flows from why we have a separate legal and sentencing regime for young people, namely that because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability. This presumption is the principle at issue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment.

[42] There are, for example, numerous sentencing provisions in the YCJA designed to protect, presumptively, young persons from custody. Confronted with a crime committed by a young person, police must consider whether alternatives, namely extra‑judicial measures or extra‑judicial sanctions, would be adequate before proceeding to court. Section 4(c) of the YCJA declares that extra‑judicial measures are “presumed to be adequate to hold a young person accountable . . . if the young person has committed a non‑violent offence and has not previously been found guilty of an offence”. Section 10 of the YCJA declares that extra‑judicial sanctions “may be used . . . only if the young person cannot be adequately dealt with by a warning, caution or referral [extra‑judicial measures] . . . because of the seriousness of the offence, the nature and number of previous offences committed by the young person or any other aggravating circumstances”.

[43] Sections 38 and 39 of the YCJA also restrict when custody is available. Before sentencing a young person to custody, the court must:

• believe that no reasonable alternative or combination of alternatives exists (s. 39(2));

• know that the previous use of a non‑custodial sentence does not preclude another non‑custodial sentence (s. 39(4));

• recognize that custody must not be a substitute for appropriate child protection, mental health or other social measures (s. 39(5));

• consider a pre‑sentence report and any sentencing proposal made by the young person or the counsel present (s. 39(6));

• state reasons why a non‑custodial sentence is inadequate (s. 39(9));

• require that the principles set out in s. 3 of the YCJA govern sentencing (s. 38(2));

• ensure that the sentence is no greater than might be afforded an adult under the same circumstances (s. 38(2)(a));

• consider all available sanctions other than custody first (s. 38(2)(d)); and

• ensure that the sentence is the least restrictive one capable of holding the young person accountable, subject to proportionality concerns (s. 38(2)(e)).

[44] This statutory preoccupation with ensuring that sentencing reflects the reduced maturity and moral sophistication of young persons, guided this Court in R. v. C.D., [2005] 3 S.C.R. 668, 2005 SCC 78, where Bastarache J. noted the YCJA’s goal to “send a clearer message to those involved in the youth criminal justice system about restricting the use of custody for young offenders” (para. 48). Bastarache J. concluded that “the object and scheme of the YCJA, as well as Parliament’s intention in enacting it, all indicate that the YCJA was designed, in part, to reduce over‑reliance on custodial sentences for young offenders” (para. 50).

[Emphasis added]

43The Court confirmed that the “[s]pecial rules based on reduced maturity and moral capacity have governed young persons in conflict with the law from “the beginning of legal history”’” (D.B. at para. 47). It is “fundamental to the operation of a fair legal system” (D.B. at para. 61). Quoting from two pre-eminent scholars in the field, the Court said, at paragraph 62:

[62] It is widely acknowledged that age plays a role in the development of judgment and moral sophistication. Professor Allan Manson notes that “[t]he general principle that applies to youthful offenders . . . [is] that a lack of experience with the world warrants leniency and optimism for the future” (The Law of Sentencing (2001), at pp. 103‑4). And Professor Bala describes the YCJA as

premised on a recognition that to be a youth is to be in a state of “diminished responsibility” in a moral and intellectual sense. Adolescents, and even more so children, lack a fully developed adult sense of moral judgment. Adolescents also lack the intellectual capacity to appreciate fully the consequences of their acts. In many contexts, youths will act without foresight or self‑awareness, and they may lack empathy for those who may be the victims of their wrongful acts. Youths who are apprehended and asked why they committed a crime most frequently respond: “I don’t know.” Because of their lack of judgment and foresight, youths also tend to be poor criminals and, at least in comparison to adults, are relatively easy to apprehend. . . .This is not to argue that adolescent offenders should not be morally or legally accountable for their criminal acts, but only that their accountability should, in general, be more limited than is the case for adults.

(Youth Criminal Justice Law, at pp. 3-4 (footnotes omitted))

44The Court also addressed the issue of the importance of privacy and publication bans with respect to young persons at paragraphs 84–86:

[84] In s. 3(1)(b)(iii) of the YCJA, as previously noted, the young person’s “enhanced procedural protection . . . including their right to privacy”, is stipulated to be a principle to be emphasized in the application of the Act. Scholars agree that “[p]ublication increases a youth’s self‑perception as an offender, disrupts the family’s abilities to provide support, and negatively affects interaction with peers, teachers, and the surrounding community” (Nicholas Bala, Young Offenders Law (1997), at p. 215)….

[85] International instruments have also recognized the negative impact of such media attention on young people. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”) (adopted by General Assembly Resolution A/RES/40/33 on November 29, 1985) provide in Rule 8 (“Protection of privacy”) that “[t]he juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling” and declare that “[i]n principle, no information that may lead to the identification of a juvenile offender shall be published”.

[86] The Ontario Court of Appeal, echoing the Quebec Court of Appeal, recognized the impact of “stigmatizing and labelling” the young person, which can “damage” the offender’s “developing self‑image and his sense of self‑worth” (para. 76).

45The Court concluded that the impugned provision was not saved by section 1 of the Charter.

46In R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679 at paragraph 147, the majority commented on the YCJAframework as follows:

[147] It is evident that the YCJA is designed to balance multiple interests. First, as Fish J. noted in R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99, “[i]n keeping with its international obligations, Parliament has sought as well to extend to young offenders enhanced procedural protections” which they alone enjoy (para. 41). These wide-ranging procedural safeguards were aptly summarized by Abella and Brown JJ. In R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 142 (dissenting, though not on this point):

Such enhanced procedural rights in the YCJA include: extrajudicial measures (ss. 4 to 12); notice to parents (s. 26); the possibility of compelling parents to attend court (s. 27); an enhanced right to counsel (ss. 10(2)(d), 25 and 32); specific obligations for youth justice court judges to ensure that young persons are treated fairly (s. 32); reducing the possibility of bail (s. 29); creating the option of releasing young persons who would otherwise be denied bail (s. 31); de novo bail reviews (s. 33); the right of young persons to be separated from adults in temporary detention (s. 30); enhanced procedural safeguards surrounding the admissibility of statements made by young persons to authorities (s. 146); and a distinct sentencing regime (ss. 38 to 82).

The NDA Exemption

47As noted above, the effect of the exemption of the NDA in section 14 of the YCJA from the otherwise exclusive jurisdiction of the YCJA over young persons is to grant concurrent jurisdiction over young persons subject to the CSD and who are accused of committing an offence under the Criminal Code or another Act of Parliament to the youth justice courts and the MJS. However, the YCJA grants a young person procedural and substantive rights that are not found in the NDA where a young military person is charged with a Criminal Code (or other Act of Parliament) offence. The question is whether, and in light of section 14 of the YCJA, the exercise of jurisdiction pursuant to paragraph 60 (1)(c) of the NDA over a young military person serving in the CAF is contrary to section 7 of the Charter. Parenthetically, a summary review of reported courts martial decisions over the past ten years suggests that this is the only case where a young person charged with a Criminal Code or CSD offence has faced a Court Martial.

48Of note, the Contraventions Act, also exempted under YCJA, includes specific provisions addressing procedures affecting young persons who are subject to that Act (see for example, Contraventions Act, ss. 5, 8(4), 16(g), 17 (1)(2), 45).

49The parties proceeded on the basis that the NDA and the YCJAestablish separate justice systems for defined groups of individuals: Stillman at para. 2; D.B. at para. 40. The assumption is that the YCJA does not take priority over a young military person charged with a section 130 service offence pursuant to the NDA. It is on that basis that we consider the arguments in this appeal. As noted, the youth judge has no jurisdiction over military offences found in sections 72 to 129 of the NDA.

50The current exemption of the NDAfrom the exclusive jurisdiction of a youth justice court did not exist under the Juvenile Delinquents Act, R.S.C. 1970, c J-3 (JDA). The exemption was first provided for in 1982, when the Young Offenders Act, R.S.C. 1985, c. Y-1 (YOA) was enacted. Significant debate around the subject occurred in the Standing Committee on Justice and Legal Affairs. According to that debate, despite section 9 of the JDAproviding that the juvenile court had exclusive jurisdiction over young people who violated provisions of the Criminal Code or any federal or provincial statute, young military members were being tried in military courts under the NDA. One of the reasons for the addition of this provision was to remedy doubt as to the “paramountcy” of the jurisdiction and continue with the current practice: House of Commons, Standing Committee on Justice and Legal Affairs, House of Commons Committees, vol 4 (20 April 1982) at 76:35–76:40.

51Despite concerns raised by some of the members of Parliament about the lack of procedural protections afforded to young persons under the NDA, the exclusion was included in the YOA in 1982 and carried forward to the YCJAwhen it was enacted in 2013.

Treatment of Young Military Persons in other Jurisdictions

52A number of comparative laws were drawn to our attention. In Australia, the Defence Force Discipline Act 1982, No. 152, 1982, Compilation #32 (DFDA) at article 71(2) provides that a punishment of detention is not available for a service offence for a member under the age of 18 years. Similarly, detention cannot be imposed, without prior approval, on a military member in New Zealand who had attained the age of 17 years but was under the age of 18 years at the time the offence was committed: Armed Forces Discipline Act 1971 as of 28 Oct 2021, 1971 No. 53, art. 117Y (4). The United States allows persons under the age of 18 years old to enlist with parental consent. It appears those members are subject to Court Martial. We were not provided with information regarding the National Guard (United States) which is similar to Canada’s Reserve Forces.

53Article 7 of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2002, 2178 U.N.T.S. 138 (in force 12 April 2002) provides:

1. The Special Court shall have no jurisdiction over any person who was under the age of 15 at the time of the alleged commission of the crime. Should any person who was at the time of the alleged commission of the crime between 15 and 18 years of age come before the Court, he or she shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child.

2. In the disposition of a case against a juvenile offender, the Special Court shall order any of the following: care guidance and supervision orders, community service orders, counselling, foster care, correctional, educational and vocational training programmes, approved schools and, as appropriate, any programmes of disarmament, demobilization and reintegration or programmes of child protection agencies.

Accordingly, some interests of young persons are accommodated under military law in other countries.

V. Issues

54The appeal raises the following issues:

1. Is the principle of diminished moral responsibility of application in the MJS?

2. If yes to A has there been a waiver of J.L.’s rights?

3. If yes to A does the MJS violate section 7 of the Charter?

4. If yes to C is the violation saved under section 1;

5. If no to D:

6. What is the appropriate remedy under section 52(1) of the Constitution Act, 1982?

7. Is the Appellant entitled to a personal remedy?

VI. Standard of Review

55The scope of section 7 of the Charter is a question of law (Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17 at para. 85 (Canadian Council)). The standard of review for legal questions is that of correctness (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 8).

VII. Positions of the Parties

Did the Military Judge err in Law by Misidentifying the Extent of the NDA’s Inconsistency with the Principle of Fundamental Justice

Position of J.L.

56J.L.’s overall argument is that the military judge erred in narrowly assessing the NDA as inconsistent with the principle of diminished moral culpability. He contends that the NDA can no longer be exempted from the provisions of the YCJA because the NDA, when applied to young military members, infringes section 7 of the Charterand is not saved by section 1.

57J.L. identified seven areas in the NDAthat he contends violate his rights guaranteed by section 7 of the Charter:

• (a)the lack of an automatic publication ban for young persons;
• (b)the lack of a requirement to inform young persons of the right to consult a parent and have a parent present during MP interviews;
• (c)young persons’ liability to the same maximum imprisonment sentences as adults;
• (d)young persons’ committal to penitentiaries and adult prisons;
• (e)young persons’ liability to criminal records;
• (f)NDA sentencing principles do not prioritize young persons’ rehabilitation and reintegration; and
• (g)the lack of sentencing tools to rehabilitate young persons.

(a) Lack of an Automatic Publication Ban

58Section 110 of the YCJA provides for an automatic publication ban of the name of a young person dealt with under the Act, subject to the remainder of section 110. J.L. submits that the NDA’s failure to offer an automatic publication ban, places “the onus on young persons to demonstrate why they remain entitled to the ongoing protection of a publication ban” and violates section 7 of the Charter: D.B.at para. 83. He states that the Supreme Court of Canada emphasized the importance of protecting the privacy of young persons, stressing that the publication of their name negatively influences their rehabilitation: D.B. at paras. 83–87. Non-publication protects young persons from stigmatization and labelling: F.N. (Re), 2000 SCC 35, [2000] 1 S.C.R. 880 at paras. 14–15. He contends that the common law publication ban does not remedy the violation of section 7 of the Charter, because the young person’s name can be published between the time when the initial charges are laid and the time the judge orders the ban.

(b) Lack of Requirement to Inform Young Persons of the Right to Consult a Parent and have a Parent Present during MP Interviews

59Section 26 of the YCJA requires that notice be given to the young person’s parent or other adult. Section 146 of the YCJA renders a statement taken by the police from a young person inadmissible unless they have been advised of their right to counsel and their right to have a parent or other adult present when giving the statement and given a reasonable opportunity to exercise those rights. J.L. asserts the NDA is inconsistent with the requirement of enhanced procedural protections (D.B. at paras. 57–59, 84–86) because it does not require the MP to inform young persons of the right to consult a parent or other chosen adult and to have them present during interviews. The absence in theNDA of additional rights for young persons to consult a parent or other chosen adult and to have them present during interviews impedes young persons from understanding and asserting their legal rights: R. v L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739 at paras. 24, 38.

60J.L. further contends that the military judge erred in finding that it was sufficient for the Canadian Forces National Investigation Services (CFNIS) to advise him of his right to consult counsel and his chain of command. A discretionary notice from the CFNIS that young persons can consult the chain of command is inadequate protection, as it is not a statutory requirement, and therefore the courts cannot enforce the rights of young persons and remedy the failure without a legislated right. Also, the right to consult a chain of command is not an appropriate substitute for parents or another chosen adult, as the former is in an adversarial position, having the duty to maintain discipline, conduct investigations and lay charges.

(c) Young Persons’ Liability to the same Maximum Imprisonment Sentences as Adults

61J.L. submits that the NDA’s sentencing scheme is inconsistent with section 7 of the Charter because it subjects young persons to the same sentences as adults, including life imprisonment, in penitentiaries or adult prisons. The NDA’ssentencing scale establishes a non-rebuttable presumption of adult sentences since there is no possibility of obtaining a youth sentence. J.L. further contends that a broad judicial sentencing discretion is not a mandatory legal presumption and that the former is insufficient to meet the presumption of diminished moral culpability because it allows military judges to impose lengthy prison sentences on young persons.

62J.L. maintains that the presumption of an adult sentence is inconsistent with section 7 of the Charter, as young persons are entitled to a presumption of diminished moral culpability, which requires the prosecution to justify the loss of a youth sentence: D.B. at paras. 70–71, 75–76, 95.

(d) Young Persons in an Adult Prison

63J.L. maintains that military judges have no discretionary power and that they must incarcerate young persons to penitentiaries or adult prisons under the NDA. He further submits that military judges cannot commit young persons to youth custody facilities because these facilities are subject to the YCJA.

(e) Criminal records

64J.L. asserts that section 249.27 of the NDA also violates section 7 of the Charter because it subjects young persons to a public criminal record for life for non-exempt offences.

(f) Rehabilitation and reintegration as sentencing principles

65J.L. argues that therehabilitation and reintegration objectives set out in subsection 203.1(2) of the NDA are discretionary. Section 203.4 of the NDA requires that the judge give primary consideration to denunciation and deterrence when offences involve the abuse of a person under the age of 18. He submits that the NDA clearly allows the military judge to impose sentences while giving priority to other objectives, and that judicial discretion and the common law do not prioritize rehabilitation or reintegration.

(g) Sentencing tools

66J.L. states that theNDA does not have any sentencing tools, such as pre-sentence reports, probation, community service, supervision program orders or rehabilitative custody to rehabilitate young persons—there were no psycho-social or child welfare services involved. He argues that the military judge erred in finding that courts martial are not required to oversee a young person’s rehabilitation, as the principle of diminished moral culpability applies throughout any proceedings, including sentencing (D.B. at para. 69).

Position of the Prosecution

67The prosecution did not make submissions on the seven points made by J.L. but makes a general submission contending that the principle of diminished moral culpability has no application in the context of the CAF, and that young military members should not be treated any differently than adult military members.

68The prosecution points to the fact that young soldiers deliberately choose to join the forces, and they are specifically informed on enrollment that they may be liable for prosecution under the CSD (QR&O, art. 6.03). In addition, in order to enroll, they must obtain the consent of a parent or guardian (NDA, s. 20(3), QR&O, art. 6.01). The prosecution maintains that these provisions amount to an express and informed waiver by young persons to the protections that are available to their civilian counterparts under the YCJA.

69The prosecution also contends that if the principle of fundamental justice asserted by J.L. does apply in the military context, that principle amounts merely to a presumption of diminished moral culpability, a presumption that is rebutted by the long-standing recognition of a separate military justice system.

70Furthermore, the prosecution says that if the principle of diminished moral responsibility applies in the military context, it can largely be respected and accommodated within the existing military justice system.

71With respect to the various points relied on by J.L., the prosecution points to the following:

• while a publication ban for young military members is not currently automatic, an automatic ban could be achieved by way of an MPs order, a standing order, or as a matter of prosecutorial policy;
• young military members do not have a guaranteed right to consult a parent or have a parent present during interviews, but they are given free legal representation and the ability to contact their parents through duty counsel;
• sentencing provisions under the NDA recognize the importance of rehabilitation and reintegration (ss. 203.1(e),(f)), the principle of proportionality of sentences and the need to take account of the degree of responsibility of the offender (s. 203.2), the importance of parity of sentences for similar offences and similar offenders (s. 203.3(b)), and the preference for non-custodial sentences where a less restrictive punishment is appropriate (s. 203.3(c));
• under the NDA, offenders can be transferred to any facility where the sentence can lawfully be served, including a youth facility; and
• offences listed in section 249.27 do not attract criminal records.

72The prosecution maintains that the principle of diminished moral culpability is limited and does not transcend beyond the boundaries of the YCJA. It acknowledges that at the second stage of the analysis, to determine whether the principle existed, the Supreme Court of Canada in D.B.considered whether there was a consensus that the principle was a fundamental element of how the separate legal system for youth should fairly apply: D.B. at paras. 46–68. To this end, the Supreme Court considered the legislative history and Canada’s international commitments.

73With regard to the legislative history, the prosecution asserts that young military members do not display the same diminished responsibility and distinctive vulnerability as other young persons as Parliament has excluded them from the scope of the YCJA (D.B.at para. 48). It therefore submits that young military members must be dealt with in the same manner as any member in the military justice system.

74The prosecution emphasizes the long legislative history in which the NDA has been consistently exempted from youth criminal justice legislation, going back to the YOA. It contends that this history reflects a long-standing recognition by Parliament that young professional military members do not exhibit the same heightened vulnerability as other youths. In addition, it demonstrates Parliament’s acceptance that young military members are uniquely situated in the sense that the offences they commit affect not just public safety, but also the discipline, efficiency, and morale of the CAF.

75The prosecution contends that Canada’s international commitments and international law recognize that young people can become young military members, which means that they are subject to military law, since they occupy a unique employment that requires autonomy, which reduces vulnerability and increases maturity in relation to youth in general.

76It asserts that paragraphs 2 and 3 of article 38 of the Convention on the Rights of the Child, 20 November 1989, Can T.S. 1992 No. 3 (entered into force 2 September 1990) (Convention) recognize that young persons may take part in hostilities, and they may be recruited into the armed forces. It claims that it becomes apparent that article 40, in the light of article 38 of the Convention, in relation to young military members, “reintegration” and “assuming a construction role” both refer to the armed forces of young persons’ category. The prosecution submits that the international law recognizes that young military members, above a reasonable age, can be prosecuted in the same manner as any other military member. It also states that other common law jurisdictions all provide for the enlistment and prosecution of young persons under their military law.

77The prosecution maintains that there is a broad consensus that the maturity and sophistication required to be a young military member are such that these youths do not require unique protections found in the youth criminal justice system. It further asserts that this explains the legislative exclusion of young military members from this system.

Did the Military Judge Err in Law by Prospectively Reading Down section 60 of the NDA and Discharging J.L. Absolutely

78Both parties contend that the military judge erred in law with the analysis of section 60 of the NDA.

79J.L. asserts that the military judge erred in law by not reading down subsection 60(1) of the NDA to exclude all offences. J.L. contends that the military judge incorrectly limited the scope of the remedy to only exclude young military members from being charged, tried, and sentenced for offences not listed at section 249.27 of the NDA. He submits that subsection 60(1) should be read to exclude young persons from the NDA’s jurisdiction for all offences because the seven areas in the NDAthat he contends violate his rights also apply to the offences listed at section 249.27. J.L. maintains that the reading down remedy should be immediate, and the declaration of invalidity should be immediate.

80J.L. also asserts that the absolute discharge is inconsistent with the principles of fundamental justice on the basis that the guilty finding will always exist and have effect, as opposed to an absolute discharge under the YCJA. J.L. argues that the proceedings should be stayed, and that a remedy pursuant to subsection 24(1) of the Charterand subsection 52(1) of the Constitution Act, 1982 is necessary and available as indicated in Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629 at paras. 141–142 (G).

81The prosecution contends that the military judge erred in law by concluding that subsection 60(1) of the NDA was unconstitutional to the extent it violated the principle of fundamental justice of the presumption of diminished moral culpability. It submits that that principle should be confined to those prosecuted under the YCJA and has no place in the context of a prosecution under the NDA.

VIII. Analysis

Establishing a Section 7 Infringement

82The steps taken by a court when considering whether legislation is unconstitutional under section 7 of theCharterare as follows: “[i]s there a deprivation of life, liberty and/or security of the person? If so, does the deprivation accord with principles of fundamental justice? If there has been a deprivation that does not accord with principles of fundamental justice, a violation of s. 7 has occurred” (D.B. at para. 37, also see Canadian Council at para. 56).

83If the legislation violates the Charter, the court then asks if it is justified as a reasonable limit pursuant to section 1 of the Charter. If it is not justified, the court must determine the appropriate remedy. Such remedies include striking down the legislation as a whole; striking down the legislation but temporarily suspending the declaration of invalidity; severing the offending part of the legislation; and reading into the legislation to make the legislation inclusive, which extends the reach of the statute or reading down the legislation to ensure exclusiveness (Schachter v Canada, , [1992] 2 S.C.R. 679, 93 DLR (4th) 1 at 695–98).

Does the principle of diminished moral responsibility apply in the MJS?

84Proceedings before courts martial in the MJS expose an accused to the possibility of imprisonment, a clear deprivation of liberty engaging section 7 of the Charter (D.B. at para. 38).

85It is equally uncontroversial that young persons benefit from a presumption of diminished moral responsibility, a presumption consistently acknowledged in Canadian law and that has been held to be fundamental to the operation of a fair legal system. The presumption is a principle of fundamental justice within the meaning of section 7 of the Charter (D.B. at paras. 41, 48, 61, 68–69).

86The prosecution does not take issue with the presumption but argues that it is of no application in the MJS. This, the prosecution submits, is because Parliament has deliberately excluded young military persons from the scope of the YCJA and its predecessor on the basis that young military members do not display the same diminished responsibility and distinctive vulnerability as other young persons in society.

87However, there is little in the legislative history to support the view that this was the rationale for excluding proceedings involving young military members under the NDA from the exclusive jurisdiction of the youth justice courts. The exclusion may instead reflect an acceptance of the need to treat young persons in the military according to military exigencies, i.e. the maintenance of discipline, efficiency, and morale in the CAF.

88Nor has the prosecution advanced evidence in support of the assertion that heightened vulnerability, less maturity and reduced capacity for moral judgment, attributes of youth that entitle them to the presumption of diminished moral responsibility (D.B. at para. 41), do not apply to young military members.

89The prosecution points to international law, and the practice of like nations to argue young persons may be prosecuted in the MJS. International instruments recognize young persons may become military members and in turn may be prosecuted under military law (Convention, art. 38). Like-minded nations allow for the enrolment of persons under 18. It is argued that international instruments and the practice of states reflects an acknowledgment of decreased vulnerability and increased maturity among the segment of the youth population that enrol in the military and that this in turn subjects young military members to prosecution in the same manner as any other professional military member.

90While international instruments and practice do establish that persons under 18 may serve in the military, the examples before us do not clearly militate toward the conclusion that young military members do not benefit from the presumption of diminished moral culpability under either international law or in practice. For example, the United Kingdom’s Armed Forces Act 2006 (U.K.) 2006 c. 52 (AFA) prohibits the imprisonment of persons under the age of 21 and those under 18 are only liable to the punishments of detention and training where convicted of an offence punishable by imprisonment (AFA, ss. 208, 211). Australia and New Zealand similarly restrict the imposition of the custodial punishment of detention upon persons under 18 (see para. [52] above). International practice suggests the principle of diminished moral culpability is recognized and implemented in like military justice systems.

91There is no evidence before us that those enlisting in the CAF at ages 16 or 17 benefit from a degree of advanced maturity that would justify depriving them of a fundamental right applicable to all other young persons in Canada. In fact, the evidence suggests otherwise. The recruitment of young military members is subject to special and specific limitations (NDA, s. 20(3), QR&O, art. 6.01) and the employment of young military members is also subject to unique limitations (NDA, s. 34).

92All laws of Canada must comply with the Charter (Constitution Act, 1982, s. 52(1)). The presumption of diminished moral responsibility or blameworthiness is a principle of fundamental justice pursuant to section 7 of the Charter and is of application within the MJS.

93That said, constitutional compliance with the principle must be considered within the context of the unique needs and purposes of the MJS. As discussed below, compliance may well be achieved through different means and processes than those Parliament has chosen to adopt within the parallel youth criminal justice system.

Has the Presumption been Waived?

94Before considering the question of whether the NDA complies with the principle and section 7, we will briefly address the prosecution’s arguments that those provisions of the NDA and QR&O requiring parental consent before persons under 18 may enrol amount to an informed waiver of the presumption of diminished moral culpability (NDA, s. 20(3); QR&O, art.6.01).

95The jurisprudence imposes a high bar where a waiver of constitutional rights is relied upon. The waiver of Charter guaranteed rights must be clear, unequivocal and informed (R. v. Bartle, , [1994] 3 S.C.R. 173, 118 D.L.R. (4th) 83 at 203–04; R. v. Clarkson, , [1986] 1 S.C.R. 383, 26 D.L.R. (4th) 493 at 395–96).

96The prosecution has the burden of establishing waiver but has submitted no evidence. Instead, the argument is advanced relying only on the statutory and regulatory requirements for parental consent on enrolment and the obligation to inform those enrolling in the CAF of their liability under the CSD (QR&O, art. 6.03). While the statute and regulations may well provide a foundation upon which to advance the waiver argument, that foundation alone falls well short of the high bar to be met where waiver is asserted.

Does the NDA Violate Section 7 of the Charter?

97J.L relies on the YCJAto identify seven deficiencies within the NDA, shortcomings that he argues deny a young military person prosecuted in the military justice system the benefit of the core principles and enhanced procedural protections provided for in the YCJA that recognize and operationalize the presumption of diminished moral culpability.

98In considering the identified shortcomings, it is important to first recognize that the YCJAdoes not establish a constitutional standard but instead reflects an approach to recognizing and respecting the presumption. Unquestionably, the YCJA also identifies certain principles that are core to the presumption, including an emphasis on rehabilitation and reintegration, and the recognition that young persons benefit from enhanced procedural protections. However, the means of implementation adopted in the YCJA are not constitutionally mandated. The MJS need not adopt measures identical to those in the criminal justice system to achieve constitutional compliance (Stillman at para. 44).

99In our view the failure of the NDA to articulate the principle of diminished moral responsibility or to adopt a separate regime for the prosecution of young military persons does not inevitably lead to the conclusion that the MJS is constitutionally deficient.

100Legislative provisions that are fundamentally responsive to a specific deprivation of a section 7 right can be sufficient to prevent that deprivation (Canadian Council at paras. 66, 71–73, 113–14). Provisions that vest discretion in certain authorities can act as a safety valve that may cure what might otherwise be a constitutional defect where competing public interests are engaged (see for example Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 at paras. 107–115).

101In this regard, military judges are provided a broad discretion under the NDA. That discretion allows military judges to protect the privacy of young military members, and to prioritize the very principles that underpin the YCJA in courts martial proceedings involving young military members.

102Military judges are guided in the exercise of their sentencing discretion by the purposes and principles of sentencing that include rehabilitation, reintegration (NDA, ss. 203.1(2)(e)–(f)), promotion of a sense of responsibility (NDA, s. 203.1(2)(i)), and the requirement that sentences in the MJS be proportionate to the gravity of the offence and the degree of responsibility of the offender (NDA, s. 203.2). Offenders are not to be deprived of their liberty where less restrictive punishments may be appropriate (NDA, s. 203.3(c)). In applying these principles and exercising their discretion in respect of a young military member, a military judge must also recognize and apply binding precedent pursuant to the doctrine of stare decisis. D.B. and the Charter are of application where military judges are required to exercise their discretion in addressing procedural matters or when sentencing young military members.

103J.L. submits the MJS lacks the sentencing tools to rehabilitate young military members but this submission fails to consider the broader context. Promotion of the habit of obedience is an objective of sentencing (NDA, s. 203.1(2)(a)) that military judges are required to consider and one the military command seeks to achieve. This jointly shared interest is unique to the military and should not be ignored.

104In addition, the scale of punishments includes not only minor punishments but the punishment of detention. Detention is described in note (A) to QR&Oarticle 104.09 as seeking “to rehabilitate service detainees, by re-instilling in them the habit of obedience in a structured, military setting, through a regime of training that emphasizes the institutional values and skills… [s]pecialized treatment and counselling programmes to deal with drug and alcohol dependencies and similar health problems will also be made available…[o]nce the sentence of detention has been served, the member will normally be returned to his or her unit without any lasting effect on his or her career”. The MJS tools that assist in the rehabilitation of military members, including young military members, are different from those available in the youth justice system but this does not mean they are ineffective or deficient. Instead, they pursue the objective of rehabilitation and reintegration in a manner that is reflective of the purposes of the MJS.

105J.L. also argues that the absence of automatic publication bans in the MJS and the absence of an obligation to inform young persons of the right to consult parents violates the principle.

106Protecting the privacy of young persons in the youth criminal justice system is intended to avoid the harms caused by undue publicity and the impact this may have on the rehabilitation and reintegration of young persons (D.B. at para. 85). These interests can be protected in the MJS. The military judge may impose a publication ban upon a courts martial being convened. As discussed above that discretion must be exercised in a manner that respects the doctrine of stare decisis and the Charter.

107We accept that a young military member’s personnel information is set out in investigation reports and charging documents. These documents are generated in the course of administering justice. They are publicly accessible but not generated for the purpose of publicity, an exception to the general prohibition on publication at subsection 110(1) of the YCJA (YCJA, s. 110(2)(c)). In addition, the ASOF states that CFNIS reporting covering the alleged offence contained a statement advising that the file identified a young person whose identity must be protected by law. This evidence indicates that the protection of a young military person’s identity is a principle that is both recognized and respected within the MJS. On this basis, and noting that a military judge has the discretion to impose a publication ban upon the convening of a courts martial, we are satisfied the MJS satisfies minimal constitutional standards in this regard.

108In our view, the CFNIS notice of the age of the accused on the report should occur in every case involving a young military member. Furthermore, an application for a publication ban should be brought before a military judge as soon as practicable.

109Nor does the absence of a provision requiring young military members to be informed of the opportunity to consult with a parent or other adult impeach the constitutionality of the NDA. The MJS includes a robust legal aid program that all military members have the right to access when they are the subject of investigation or have been arrested or detained in respect of a service offence (QR&O, arts. 101.11(1)(a)–(b)). Readily available access to legal advice provides young military members with a mechanism to consult and obtain advice in all situations including those where the demands of military service may make parental contact either impossible or impractical. The military justice system provides a mechanism that ensures young military members have the benefit of confidential advice when they are engaged in MJS proceedings. This mechanism need not be unique to young military members to satisfy the principle and respect section 7 rights.

110Judicial discretion in the sentencing process is circumscribed by the application of the Charter and, in the case of young military members, that includes taking into account the presumption of diminished moral culpability when crafting a fit sentence and to reflect the core principles set out in the YCJA. As such the MJS is constitutionally compliant.

111However, the NDA imposes non-discretionary consequences following conviction for many service offences – Criminal Records Act consequences, SOIRA orders and DNA production orders are all non-discretionary and inconsistent with a presumption of diminished moral culpability. Certain service offences charged pursuant to section 130 may also require the imposition of a mandatory minimum sentence upon conviction. These consequences are long lasting, significantly impact young military members, and cannot be mitigated or avoided. They presumptively undermine the primary objectives of rehabilitation and integration and are inconsistent with the principle of diminished moral culpability.

112To the extent that the NDA imposes mandatory consequences or mandatory minimum sentences upon a young person convicted of a service offence, the NDAis constitutionally deficient.

113J.L., as a young military member, was charged with service offences that upon conviction imposed mandatory long-term consequences, contrary to the principle of diminished moral responsibility. J.L.’s rights pursuant to section 7 of the Charter were infringed when he was tried by courts martial.

114Having so concluded we now turn to the application of section 1 of the Charter and if necessary, the appropriate remedy.

Is the violation justified?

[115] Having established that the exclusion of parts of the YCJA from the NDA infringes the section 7 Charter right in relation to diminished moral culpability, the prosecution has the burden of demonstrating on a balance of probabilities that the exclusion is justified pursuant to section 1 of the Charter: G at para. 71. First, there must be a pressing and substantial objective to justify the impugned law. Second, the means chosen to achieve that objective must be proportional to it. The proportionality test has the following conditions: i) that the means adopted are rationally connected to the objective; ii) it is minimally impairing of the right in question; and iii) there is proportionality between the deleterious and salutary effects of the law (Schachterat 703; R. v. Oakes, , [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 at 138–40; G at paras. 71–72).

116It is rare that a violation of section 7 of the Charterwill be justified under section 1 of the Charter: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, 276 D.L.R. (4th) 594 at para. 66.

117The extensive arguments put forward by the prosecution, are in our view, also relevant to section 1 of the Charter, although not framed in that manner. The prosecution did not call any section 1 evidence, and the military judge did not give effect to section 1 on that basis. However, interpreting the prosecution’s compelling arguments in the context of section 1, we examine whether, in the face of a section 7 violation, that violation is justified by section 1 of the Charter.

118Turning first to whether there is a pressing and substantial objective to justify the impugned law, the prosecution says that both the CSD and YCJApurposes are easily identifiable. The fundamental purpose of sentencing under the CSD is to maintain discipline, efficiency, and morale of the CAF, as defined in subsection 203.1(1) of the NDA. The purpose of sentencing under the YCJA is to hold young persons accountable for an offence through the imposition of just sanctions that promote their rehabilitation and reintegration into society, as defined in subsection 38(1) of the YCJA. Consequently, sentencing under the CSD and YCJA occurs in different contexts and serves different purposes, which partly explains why young military members have been excluded from the protections of the YCJA in section 14. The purpose of CSDis to ensure that military personnel can be operationally effective anywhere in the world.

[119] The prosecution further mentions that the removal of offences committed by young military members from the CSD would have the unfortunate consequence of eliminating these unique and important objectives at the sentencing stage, as would the removal of serious civil offences from the system (Stillman at para. 101). Furthermore, it contends that there is no logical reason why the CSD cannot coexist with the YCJA when it comes to young military members, just as the CSD operates in parallel with the civilian criminal justice system (Stillman at para. 20). In considering the subsection 11(f) Charter exemption, the right to be tried by a jury, the Court in Stillman noted that the military justice system is a constantly evolving system with unique safeguards—such as free legal representation at all levels. The prosecution contends that Parliament has responded to the reality within the CAF. These arguments, as noted above, addressed the section 7 violation. They are, in our view, also relevant to a section 1 analysis.

120The need for a separate military justice system has been frequently referred to by the Supreme Court of Canada: R. v. Moriarity, 2015 SCC 55, 394 D.L.R. (4th) 573; R. v. Généreux, , [1992] 1 S.C.R. 259, 88 D.L.R. (4th) 110; Stillman; Edwards. Military personnel operate in a vastly different milieu than the civilian population. The emphasis on and importance of discipline, efficiency and morale of the military cannot be understated. In our view, that is a pressing and substantial objective that would justify overriding a constitutionally protected right or freedom (Oakes at para. 69).

121The next question is whether the means chosen, excluding young military reserve members charged with Criminal Code and other service offences from the constitutional protections of the YCJA, are reasonable and demonstrably justified. This involves a “proportionality test.” The three components of that test are set out in paragraph 70 of Oakes:

[70] …There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".

[Emphasis in original]

122Mandatory sentencing consequences means a criminal record will flow upon conviction for certain service offences, and in this case, the requirement to supply a DNA test and register as a sex offender.

123While these measures are not arbitrary, in the changing world we live in with the recognition of a constitutional right to a presumption of diminished moral culpability they are, in our view, unfair and irrational. We see no rational connection between the subjection of a young person in the CAF to mandatory consequences upon conviction for a service offence and the purposes of the CSD, the maintenance of the discipline efficiency and morale of the CAF.

124Moreover, we do not see how depriving a young person in the CAF of the principle of diminished moral culpability is a proportionate response to those purposes.

125In our opinion, the provisions exposing young military members to long-term consequences as a result of convictions for service offences are not saved by section 1 of the Charter.

IX. Remedy

The Constitutional Remedy

126We have come to a similar conclusion as the military judge, albeit for different reasons. The next question is whether the military judge chose an appropriate remedy pursuant to subsection 52(1) of the Constitution Act, 1982, given our findings on the constitutionality of the provisions.

127The military judge’s remedy was to prospectively read down section 60 of the NDA “to the extent that the provision subjects young persons to be charged, tried, and sentenced at courts martial for Criminal Code offences and those few offences not set out in paragraph 249.27(1)(a) of the NDA” (JL3 at para. 171).

128A court may strike down any law that is inconsistent with the constitution, but that remedy may only be exercised to the extent of the inconsistency: Constitution Act, 1982, s. 52(1). As noted above, the remedies available are: striking down the legislation as a whole; striking down the legislation but temporarily suspending the declaration of invalidity; severing the offending part of the legislation; reading into the legislation to make the legislation inclusive, which extends the reach of the statute; or reading down the legislation to ensure exclusiveness (Schachterat 695).

129In G, the Court elaborated on the distinctions between tailored subsection 52(1) remedies as follows:

[113] Reading down is when a court limits the reach of legislation by declaring it to be of no force and effect to a precisely defined extent. Reading down is an appropriate remedy when “the offending portion of a statute can be defined in a limited manner” (Schachter, at p. 697). Inversely, reading in is when a court broadens the grasp of legislation by declaring an implied limitation on its scope to be without force or effect. Reading in is an appropriate remedy when the inconsistency with the Constitution can be defined as “what the statute wrongly excludes rather than what it wrongly includes” (Schachter, at p. 698 (emphasis in original)). Severance is when a court declares certain words to be of no force or effect, thereby achieving the same effects as reading down or reading in, depending on whether the severed portion serves to limit or broaden the legislation’s reach. Severance is appropriate where the offending portion is set out explicitly in the words of the legislation. These forms of remedy illustrate a court’s flexibility in responding to a constitutional violation.

[114] However, if granted in the wrong circumstances, tailored remedies can intrude on the legislative sphere. Schachter cautioned that tailored remedies should only be granted where it can be fairly assumed that “the legislature would have passed the constitutionally sound part of the scheme without the unsound part” and where it is possible to precisely define the unconstitutional aspect of the law (p. 697, citing Attorney‑General for Alberta v. Attorney‑General for Canada, , [1947] A.C. 503 (P.C.), at p. 518). If it appears unlikely that the legislature would have enacted the tailored version of the statute, tailoring the remedy would not conform to its policy choice and would therefore undermine parliamentary sovereignty (Schachter, at pp. 705‑6; Hunter, at p. 169). The significance of the remaining portion of the statute must be considered, and tailored remedies should not be granted when they would interfere with the legislative objective of the law as a whole (Schachter, at pp. 705‑15). For example, in Vriend, Iacobucci J. read “sexual orientation” into the Individual’s Rights Protection Act, R.S.A. 1980, c. I-2, because the term was sufficiently precise and because the legislature would rather have included that protection than sacrificed the entire scheme (paras. 155‑60 and 167‑69). In R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, McLachlin C.J. severed part of the tertiary ground for denying bail because the rest of the provision “is capable of standing alone without doing damage to Parliament’s intention” (para. 44). This Court has granted a remedy short of full invalidity of a statutory provision at least 24 times.[4] Nonetheless, a tailored remedy will frequently not be appropriate. This Court has opted to fully invalidate a provision at least 55 times.[5] These include the cases dealing with mandatory minimum penalties referenced above — the goal of a mandatory minimum sentence is to remove judicial discretion, so tailoring the declaration to reintroduce that discretion would distort the provision so that it no longer conformed to its legislative purpose (R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 50 and 53).

[115] Lamer C.J. was also conscious of the limitation of the judicial role, explaining in Schachter that tailored remedies should not be granted when they do not “flo[w] with sufficient precision from the requirements of the Constitution”, because although courts are capable of determining what the Constitution requires, they are not well‑suited to making “ad hoc choices from a variety of options” (p. 707).

[116] In sum, consistent with the principle of constitutional supremacy embodied in s. 52(1) and the importance of safeguarding rights, courts must identify and remedy the full extent of the unconstitutionality by looking at the precise nature and scope of the Charter violation. To ensure the public retains the benefit of legislation enacted in accordance with our democratic system, remedies of reading down, reading in, and severance, tailored to the breadth of the violation, should be employed when possible so that the constitutional aspects of legislation are preserved (Schachter, at p. 700; Vriend, at paras. 149‑50). To respect the differing roles of courts and legislatures foundational to our constitutional architecture, determining whether to strike down legislation in its entirety or to instead grant a tailored remedy of reading in, reading down, or severance, depends on whether the legislature’s intention was such that a court can fairly conclude it would have enacted the law as modified by the court. This requires the court to determine whether the law’s overall purpose can be achieved without violating rights. If a tailored remedy can be granted without the court intruding on the role of the legislature, such a remedy will preserve a law’s constitutionally compliant effects along with the benefit that law provides to the public. The rule of law is thus served both by ensuring that legislation complies with the Constitution and by securing the public benefits of laws where possible.

130The military judge “read down” the provisions of the NDA by stating that they do not apply to young persons. We agree that “reading down” the legislation is the appropriate remedy.

131The exemptions can be defined with sufficient precision. Reading down the legislation would narrow the reach of the NDAwith respect to young military members charged with certain offences and keep the legislation intact without this Court intruding on the role of the legislature. Parliament was unaware that the presumption of diminished moral responsibility was a fundamental right for a young person at the time the legislation was drafted. Reading it down to exempt those members preserves the law’s constitutionally compliant effect.

132We would read down section 60(1) of the NDA to the extent that this provision does not apply to a member who is a young person as defined in the YCJA and is charged with a service offence not set out in paragraph 249.27(1)(a) of the NDA. The effect of this change would not establish a new scheme of any proportion given the numbers affected by the change. It may result in Criminal Code and other Acts of Parliament offences being prosecuted in Youth Court. Given that there appears to have been one such prosecution in the past ten years or more, such a transfer of jurisdiction would not amount to a significant budgetary imposition on the provinces (Schachter at 709). Indeed, as a matter of policy, most, if not all sexual offences alleged against military personnel have been referred to the civilian courts since 2021 pursuant to the Joint Statement of the Canadian Forces Provost Marshal and the Director of Military Prosecutions and mandatory referral is proposed in Bill C-66, An Act to amend the National Defence Act and other Act, 1st Sess., 44th Parl., 2024, cl. 7 (first reading 21 March 2024; second reading in progress).

Personal Remedy

133The military judge had convicted J.L. and did not reverse her jurisdiction to do so as she granted the remedy prospectively. Instead, she granted him an absolute discharge on both counts. In light of our conclusion, the military judge did not have jurisdiction to try J.L.

134The allegation against J.L. arose over four years ago. It was, in the scheme of offences, not a serious sexual assault, although no doubt very frightening to A.L.

135If a retrial were ordered and transferred to the Youth Court, the prosecution would be facing a delay argument pursuant to subsection 11(b) of the Charter and R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 at paragraphs 20, 25. In our view, there is no benefit to J.L., A.L., the CAF or the community at large to require J.L. to face a trial in the YCJA system. We would, therefore, enter a stay of proceedings on both counts.

X. Conclusion

136We dismiss the prosecution’s cross-appeal. We apply the constitutional remedy to the NDA by reading down subsection 60 (1) of the NDA as it pertains to young military members charged with a service offence, other than those identified in section 249.27 that will not result in a criminal record.

137We would allow the defence appeal to the extent that we would impose a stay of proceedings on both charges.

BY THE COURT

"Elizabeth A. Bennett"

Justice

"James O’Reilly"

Justice

"Patrick K. Gleeson"

Justice

COURT MARTIAL APPEAL COURT OF CANADA

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:

CMAC-636

STYLE OF CAUSE:

PRIVATE J.L. v. HIS MAJESTY THE KING

PLACE OF HEARING:

OTTAWA, ONTARIO

DATE OF HEARING:

FEBRUARY 9, 2024

REASONS FOR JUDGMENT BY:

THE COURT

DATED:

DECEMBER 9, 2024

APPEARANCES:

Lieutenant-Commander Patrice Desbiens

FOR THE APPELLANT

Lieutenant-Commander Karl Lacharité Major Angela Orme