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.

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.

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.

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.