Elizabeth A. Bennett

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An extension was granted to September 13, 2024.

The appellant 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, 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 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.