Major Stephan Poitras

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 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, 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, 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 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.