Mark Létourneau

Nine members of the Canadian Armed Forces charged with service offences under the Code of Service Discipline challenged the constitutional validity of the statutory requirement that military judges presiding over courts martial must hold officer rank, alleging a breach of the right to an independent and impartial tribunal under s. 11(d) of the Charter.

The majority held that the military status of military judges, as presently configured under the National Defence Act, meets the three essential conditions of judicial independence — security of tenure, financial security, and administrative independence — and that a reasonable and informed person would not apprehend bias or insufficient independence.

The Court declined to depart from its earlier ruling in R. v. Généreux and upheld the constitutionality of ss. 165.21 and 165.24(2) of the NDA.

Karakatsanis J. dissented, concluding that the disciplinary accountability of military judges to the executive chain of command undermines judicial independence in a manner that cannot be saved under s. 1.

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 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 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.

A member of the Canadian Armed Forces posted abroad was convicted of voyeurism, possession of a device for surreptitious interception of private communications, sexual assault, and disgraceful conduct, following a search of his residence and electronic devices by Canadian military investigators and local police operating under a Virginia warrant.

The appellant challenged the search as violating s. 8 of the Charter, arguing the search was unauthorized and unreasonably expanded to cover unanticipated offences.

The majority held that the search was authorized by law under the Virginia warrant, which expressly covered electronic devices; that the warrant met the Vu standard for specific prior authorization of digital searches; and that evidence of sexual assault discovered inadvertently during triage of electronic devices was admissible under the plain view doctrine.

The Court declined to reconsider the extraterritorial application of the Charter as established in R. v. Hape.

The appeal was dismissed and convictions affirmed.

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 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 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 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.

Military accused persons charged with serious civil offences under s. 130(1)(a) of the National Defence Act argued that the military justice system's denial of a jury trial violated s. 11(f) of the Charter.

The majority held that s. 130(1)(a) falls within the military exception in s. 11(f) because it was validly enacted under Parliament's power over militia and defence under s. 91(7) of the Constitution Act, 1867, and is not overbroad under s. 7.

The majority rejected any heightened 'military nexus' requirement beyond the accused's military status.

In dissent, Karakatsanis and Rowe JJ. would have read a military connection requirement into s. 130(1)(a), limiting military court jurisdiction to offences directly connected to military circumstances.

The Crown brought a motion to stay a declaration of invalidity issued by the Court Martial Appeal Court of Canada, which had declared s. 130(1)(a) of the National Defence Act of no force or effect in its application to any civil offence carrying a maximum sentence of five years or more imprisonment, pending the Crown's appeal of that decision.

The Court applied the well-established test from Manitoba (Attorney General) v. Metropolitan Stores Ltd. and RJR-MacDonald Inc. v. Canada (Attorney General) and found that the balance of convenience did not favour granting the stay.

The motion was dismissed.

The Court dismissed the appeal and affirmed the order for a new trial in a sexual assault prosecution.

It held there was no evidentiary basis to find that the accused took reasonable steps to ascertain consent under s. 273.2(b) of the Criminal Code, so the defence of honest but mistaken belief in consent should not have been left with the panel.

The appeals addressed whether provisions of the National Defence Act permitting the Minister of National Defence to initiate appeals in military justice matters violate ss. 7 or 11(d) of the Charter.

The Court held that prosecutorial independence is a principle of fundamental justice, but that the Minister benefits from the same strong presumption of independent prosecutorial discretion as other public officials exercising prosecutorial functions.

The challenged provisions were found constitutional, and no statutory framework or evidentiary record established improper partisan motive.

On the mistrial issue, the Court held the military judge committed no reviewable error in refusing a mistrial after issuing strong curative instructions.

The motion to quash was dismissed and the Minister’s appeals were allowed.

These appeals challenged the constitutional validity of National Defence Act provisions that permit service prosecution of underlying federal offences and fraudulent acts for persons subject to the Code of Service Discipline.

The appellants argued the provisions were overbroad under section 7 of the Charter because they extended military jurisdiction beyond conduct directly tied to military operations.

The Court held the provisions pursue maintenance of discipline, efficiency, and morale, and that prosecuting off-duty or non-base criminal conduct remains rationally connected to that objective.

The overbreadth challenge failed and all appeals were dismissed.