Isabelle Gagné

The respondent pleaded guilty before a court martial to dangerous driving under the Criminal Code, charged as a military offence.

At sentencing, the prosecution and defence jointly recommended a driving prohibition under the Criminal Code.

The military judge held he lacked jurisdiction to impose a driving prohibition.

The prosecution appealed.

The Court Martial Appeal Court dismissed the appeal, holding that the National Defence Act establishes a distinct sentencing regime for military offences, and courts martial do not possess jurisdiction to impose discretionary penalties like driving prohibitions that are set out only in the Criminal Code.

The appellant, a civilian dependant of a Canadian Armed Forces member stationed in Belgium, was convicted by a Standing Court Martial of operating a conveyance while impaired.

He appealed, arguing that trying him in the military justice system rather than the civilian system was arbitrary and infringed section 7 of the Charter.

The Court Martial Appeal Court dismissed the appeal, holding that the statutory provisions explicitly apply Canadian law to his conduct abroad.

The Court further held that the decision to prosecute falls squarely within prosecutorial discretion, which can only be interfered with in cases of abuse of process, none of which was established here.