Criminal and Quasi-Criminal Law - CMAC

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

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

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

The appeal was dismissed.

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

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

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

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

The Crown appealed the acquittal of the respondent on two counts of indecent acts.

The Crown argued that the military judge erred by admitting evidence that invited impermissible reasoning based on myths and stereotypes regarding the complainant's post-offence conduct, specifically her failure to report immediately and her continued friendly email correspondence with the respondent.

The Court Martial Appeal Court dismissed the appeal.

The Court found that the cross-examination on the emails was conducted for a proper purpose to challenge the complainant's statements and corroborate the defence theory.

While defence counsel's closing address improperly invited the panel to engage in myth-based reasoning, the Court concluded that this single error did not have a material bearing on the verdict, given the military judge's instructions to the panel and the other bases upon which the panel could have found a reasonable doubt regarding the complainant's credibility.

The appellant, convicted of sexual assault by a General Court Martial, sought a second extension of time to file his memorandum of fact and law for his appeal.

The appellant's new counsel requested an additional 60 days after a previous 90-day extension had expired.

The Court Martial Appeal Court of Canada dismissed the motion, finding a complete lack of diligence by the appellant and his counsel in explaining the delays.

Furthermore, the appellant failed to provide any evidence demonstrating the merits of the appeal, and granting another extension would prejudice the prosecution.

The appellant, a corporal in the military, appealed his conviction for sexual assault and his sentence of 30 days' imprisonment, demotion, and a $5,000 fine.

The conviction appeal argued the military judge's credibility findings were illogical.

The Court Martial Appeal Court dismissed the conviction appeal, finding no error in the credibility assessment.

On the sentence appeal, the appellant and the Crown jointly argued the military judge erred by imposing imprisonment instead of the jointly submitted 30 days' detention without giving the parties notice and an opportunity to make further submissions.

The Court applied the framework from Nahanee, holding that a sentencing judge must notify parties before exceeding a sentencing submission, even if the offender was convicted after a trial rather than pleading guilty.

The sentence appeal was allowed, and the sentence was varied to 30 days' detention, with all other orders remaining.

The appellant, a retired corporal, appealed his conviction by a Military Judge for conduct to the prejudice of good order and discipline under s. 129 of the National Defence Act.

The sole ground of appeal was a constitutional challenge asserting that military judges lack independence and impartiality because they are also officers in the Canadian Armed Forces.

The Court Martial Appeal Court of Canada dismissed the appeal, relying on its recent jurisprudence to hold that the status of military judges as officers does not render them partial or lacking in independence.

The applicant, a Sergeant convicted of sexual assault and sentenced to nine months of imprisonment and a reduction in rank, sought a stay of the execution of his sentence pending his application for leave to appeal to the Supreme Court of Canada.

The Crown consented to the stay subject to conditions.

The Court Martial Appeal Court of Canada applied the RJR-MacDonald and Oland tests, finding that the appeal raised a serious issue regarding the independence and impartiality of military judges, that the applicant would suffer irreparable harm, and that the balance of convenience favoured granting the stay.

The Court granted the stay of execution of sentence subject to conditions.

The appellant, a Sergeant in the Canadian Armed Forces, appealed his conviction for sexual assault by a Military Judge.

The appellant raised four grounds of appeal: refusal to grant a meaningful adjournment following late disclosure, refusal to grant an adjournment prior to sentencing to investigate false memory syndrome, restricting cross-examination of the complainant regarding her financial situation and potential class action claim, and lack of judicial independence of the Military Judge.

The Court Martial Appeal Court dismissed the appeal, finding no error in the Military Judge's discretionary decisions regarding adjournments and cross-examination, and rejecting the judicial independence argument based on established jurisprudence.

The applicant, a Naval Cadet, was convicted of sexual assault and sentenced to two years' incarceration.

He applied for a stay of execution of his sentence pending the Supreme Court of Canada's decision in Edwards et al., which involves a constitutional challenge to the independence and impartiality of military courts.

The Court Martial Appeal Court of Canada granted the stay, noting that the Supreme Court's recent decision to grant leave to appeal in Edwards et al. created uncertainty regarding the validity of the applicant's conviction.

The Court found that the applicant did not pose a flight risk or a danger to the public, and that the balance of convenience favoured granting the stay to preserve the applicant's right to a trial by an independent and impartial court.

The Crown appealed a Military Judge's acquittal of the respondent on a charge of sexual assault.

The trial judge found that while the complainant lacked capacity to consent due to intoxication, the respondent had an honest but mistaken belief in consent.

The Crown argued the judge's reasons were contradictory and engaged the recklessness provision in s. 273.2 of the Criminal Code.

The Court Martial Appeal Court dismissed the appeal, holding that the Crown misconstrued the judge's recitation of the prosecution's burden as a factual finding.

The trial judge's factual findings supporting the defence were upheld.

The appellant, a Naval Cadet convicted of sexual assault at a court martial, appealed on the basis that the subjugation of military judges to the Code of Service Discipline violates the right to an independent and impartial tribunal under section 11(d) of the Charter.

The Court Martial Appeal Court dismissed the appeal, relying on its previous decisions in Edwards, Proulx, Christmas, and Brown, which had already determined that the military justice structure does not violate the Charter.

The Crown appealed the acquittal of the respondent, who had been charged with sexual assault.

The Crown argued the military judge erred in concluding that the complainant, who was highly intoxicated, was capable of consenting to the sexual activity.

The majority of the Court Martial Appeal Court dismissed the appeal, finding no legal error in the military judge's assessment of the evidence and his conclusion that the Crown failed to prove lack of capacity or lack of consent beyond a reasonable doubt.

The dissenting judge would have allowed the appeal and ordered a new trial, finding the military judge failed to conduct a proper cumulative assessment of the evidence.

The Crown appealed a sentence imposed by a military judge on the respondent, who pleaded guilty to common assault against his girlfriend and an offence under the Code of Service Discipline for fighting with a corporal.

The military judge imposed a severe reprimand and a $3,000 fine, rejecting the Crown's request for a 90-day term of imprisonment.

The Court Martial Appeal Court dismissed the appeal, finding that the military judge properly considered the principles of sentencing, including denunciation and deterrence, and correctly applied both military and civilian case law.

The sentence was not demonstrably unfit and was free from any error in principle.

The appellant, a member of the Canadian Armed Forces, appealed his court martial convictions for sexual assault.

At trial, the appellant sought to introduce evidence of the complainant's prior sexual activity with a third party to establish a motive to fabricate the allegations.

The Military Judge dismissed the application at Stage One under section 278.93 of the Criminal Code, finding the evidence irrelevant and based on prohibited twin myths, and refused to hold a Stage Two admissibility hearing.

The Court Martial Appeal Court allowed the appeal, holding that the proposed evidence was logically relevant to assessing credibility and a potential motive to fabricate, without engaging the prohibited stereotypes.

The Court declined to apply the curative proviso, as the error was not harmless and the evidence of guilt was not overwhelming.

A new trial was ordered.

The Crown appealed a military judge's decision terminating court martial proceedings against the respondent for sexual assault.

The alleged offences occurred in 1998, prior to the coming into force of Bill C-25, which amended s. 70 of the National Defence Act to give military courts concurrent jurisdiction over sexual assaults committed in Canada.

The issue on appeal was whether the amendment applied retrospectively.

The Court Martial Appeal Court held that Parliament did not express a clear intent for the amendment to apply retrospectively.

Furthermore, the amendment affected substantive rights, including the right to a jury trial and the right not to be subjected to more severe punishment, as the military system only prosecutes sexual assault by indictment and does not offer conditional discharges.

Therefore, the presumption against retrospective application applied.

The appeal was dismissed, confirming that service tribunals lack jurisdiction to try sexual assaults alleged to have occurred in Canada prior to September 1, 1999.

The appellant, a Bombardier in the Canadian Armed Forces, was convicted of disgraceful conduct and administering a noxious thing after distributing cannabis-laced cupcakes to soldiers during a live fire artillery exercise.

She appealed her convictions and sentence.

The Court Martial Appeal Court dismissed the appeal.

The court found no breach of section 7 of the Charter regarding allegedly lost cupcake wrappers, as there was no unacceptable negligence or prejudice.

The court also held that the military judge did not misapprehend the circumstantial evidence and that the guilty verdicts were reasonable.

Finally, the court upheld the sentence of 30 days' imprisonment and dismissal from service, emphasizing the extreme danger the appellant's actions posed to the 150 personnel involved in the exercise and the need for general deterrence and denunciation.

The Crown appealed the acquittal of a military corporal charged with disgraceful conduct and ill-treating a subordinate.

The charges arose from allegations of inappropriate physical contact in a busy military galley.

The military judge found the complainant generally credible but acquitted the accused, citing a lack of contextual evidence regarding the workplace environment and shift schedules that left her with a reasonable doubt.

On appeal, the Crown argued the military judge erred in law by implicitly requiring corroboration of the complainant's testimony.

The Court Martial Appeal Court dismissed the appeal, holding that the military judge did not require corroboration but appropriately acquitted based on a lack of evidence and concerns about the reliability of the testimony in context.

The appellant, a military reservist, was convicted at a General Court Martial of stealing and conduct to the prejudice of good order and discipline after unauthorized ammunition was found in his barracks nightstand.

He appealed, arguing that his statements to military police should have been excluded due to Charter breaches, that evidence of the ammunition's discovery should have been excluded under section 24(2), and that the military judge erred by not giving a W.(D.) instruction regarding his exculpatory statements.

The Court Martial Appeal Court dismissed the appeal, finding the appellant was not detained during questioning, the initial discovery by non-state actors was admissible independent of the subsequent unlawful police seizure, and the jury instructions were adequate.

The appellant, a Sergeant in the Canadian Armed Forces, appealed his court martial conviction for sexual assault.

He argued that the military judge failed to properly apply the W.(D.) framework for assessing credibility, made palpable and overriding errors of fact, and that the military status of the judge violated his right to an independent and impartial tribunal under s. 11(d) of the Charter.

The Court Martial Appeal Court dismissed the appeal.

The Court found that the military judge correctly applied the substance of the W.(D.) test by assessing the appellant's evidence in the context of the whole record.

The Court also held that the military judge's factual findings were reasonable, and any minor misapprehension of evidence was harmless and curable under the proviso in s. 686(1)(b)(iii) of the Criminal Code.

Finally, the Court reaffirmed its prior jurisprudence that the military justice system and the status of military judges do not violate s. 11(d) of the Charter.

The Crown appealed a stay of proceedings ordered by a military judge.

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

The Court Martial Appeal Court of Canada allowed the appeal, lifted the stay, and ordered the trial to proceed, relying on its recent decisions in Edwards and Proulx which held that the military justice structure does not violate section 11(d).