Criminal and Quasi-Criminal Law - CMAC

The applicant, a military sergeant convicted of sexual assault, applied for a stay of execution of his 18-month sentence pending his application for leave to appeal to the Supreme Court of Canada.

The applicant argued that his appeal raised a serious constitutional question regarding the military justice system.

The Court Martial Appeal Court dismissed the motion.

While acknowledging a serious question to be tried and irreparable harm, the Court found that the balance of convenience did not favour a stay.

Given the seriousness of the offence, the passage of ten years since the incident, and the fact that the Court had already ruled on the constitutional issue multiple times, public confidence in the administration of justice required the sentence to be executed in a timely manner.

The Crown appealed a military judge's order staying proceedings against the respondent.

The military judge had ruled that the subjugation of military judges to the Code of Service Discipline violated the respondent's right to an independent and impartial tribunal under section 11(d) of the Charter.

Relying on its recent decisions in related appeals, the Court Martial Appeal Court of Canada found no Charter violation, allowed the appeal, lifted the stay, and ordered the trial to proceed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The stays were lifted and the trials ordered to proceed.

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

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

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

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

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

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

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

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

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

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

The appellant, a corporal in the Canadian Armed Forces stationed in Washington, D.C., was convicted at a Court Martial of voyeurism, sexual assault, and other offences.

The charges arose after Canadian military investigators, with the assistance of local police and a Virginia search warrant, searched his residence and seized electronic devices following a waiver of his diplomatic immunity.

The appellant appealed, arguing that the search violated his section 8 Charter rights.

The Court Martial Appeal Court dismissed the appeal, holding that the Charter does not apply extraterritorially to searches conducted under foreign sovereign authority, even when Canadian investigators participate.

The Court further held that the admission of the evidence did not render the trial unfair, as the search was authorized by a valid foreign warrant, conducted reasonably, and would have complied with Charter standards had it occurred in Canada.

The appellant brought a motion to set aside a previous order that dismissed his request for an extension of time to file his Memorandum of Fact and Law.

The previous motion was dismissed because it lacked supporting evidence.

On this motion, the appellant filed affidavits, including a medical report, demonstrating that his former counsel was unable to meet the filing deadlines for medical reasons.

The Court Martial Appeal Court of Canada granted the motion, rescinded the previous order, and extended the time for filing the memorandum in the interests of justice.

The appellant, a military police officer and provost marshal, was convicted at a Standing Court Martial of two counts of conduct to the prejudice of good order and discipline under section 129 of the National Defence Act.

The charges arose from incidents during a deployment where he simulated a sexual act directed at a female colleague and made inappropriate sexual comments about women in the presence of junior female members.

On appeal, he argued the military judge misapplied the W.(D.) framework for assessing credibility and erred in finding his conduct prejudiced good order and discipline.

The Court Martial Appeal Court dismissed the appeal, finding the military judge correctly applied the law, properly assessed the evidence, and reasonably concluded that the appellant's actions undermined discipline given his senior rank and role.

The appellant brought a motion for an extension of time to serve and file his Memorandum of Fact and Law, and for permission to file a memorandum exceeding 30 pages.

The motion was filed without a supporting affidavit, contrary to Rule 24(2) of the Court Martial Appeal Court Rules.

Noting the absence of any evidence by way of affidavit or oral testimony to support the motion, the Court dismissed the request for an extension of time.

Consequently, the motion seeking leave to file a memorandum in excess of 30 pages was rendered moot.

The appellant, a Captain in the Canadian Armed Forces, was convicted by a court martial of sexual assault, conduct to the prejudice of good order and discipline, and ill treatment of a subordinate.

He was sentenced to a reduction in rank to captain (from major) and ordered to register on the sex offender registry.

Pending his appeal of the convictions and sentence, he brought a motion to stay the execution of his reduction in rank, arguing that his upcoming release from the Armed Forces would be embarrassing if his release documents and ceremony reflected the lower rank.

The Court Martial Appeal Court held that it had jurisdiction to stay the execution of a reduction in rank.

However, applying the RJR-MacDonald test, the Court found that the appellant would not suffer irreparable harm, as the release documents could be corrected if his appeal succeeded.

The balance of convenience favoured the respondent.

The motion was dismissed.

The appellant, Her Majesty the Queen, brought motions to consolidate four separate appeals involving different respondents.

Following a case management conference and upon the consent of the parties, the Chief Justice of the Court Martial Appeal Court ordered that the appeals be heard together by a bilingual panel pursuant to Rule 28(1)(f) of the Court Martial Appeal Court Rules.

The court also set a schedule for the filing of submissions and the appeal book, and directed the provision of simultaneous translation services for the hearing.

The respondent, a military officer who was successfully acquitted of a charge of conduct prejudicial to good order and discipline, brought a motion for costs following the dismissal of the Crown's appeal.

The Crown argued the Court was functus officio.

The Court Martial Appeal Court held it was not functus officio as the issue of costs had not been addressed during the appeal.

The Court found that while the Crown's conduct was not frivolous or vexatious, the prosecution was pursued as a test case to determine the limits of military justice jurisprudence regarding Operation Honour.

Concluding that an individual accused should not bear the financial burden of a test case with systemic implications, the Court awarded the respondent party-and-party costs fixed at $10,000.

The Crown appealed a Standing Court Martial sentence imposed on a Petty Officer Second Class who pleaded guilty to stealing and improperly selling kitchen equipment while entrusted with it.

The Military Judge had imposed a severe reprimand, an $8,000 fine, and restitution, declining to impose a custodial sentence.

The Crown argued that civilian precedents required a custodial sentence for theft from an employer absent exceptional circumstances.

The Court Martial Appeal Court dismissed the appeal, holding that the Military Judge correctly applied military sentencing principles, which prioritize reintegration and operational effectiveness, and that military jurisprudence does not mandate imprisonment for breach of trust thefts.

The sentence was found to be fit and proportionate.