Patrice Germain

The moving party, a military officer charged with sexual assault and forcible confinement, brought a motion to re-impose a stay of proceedings pending the disposition of an application for leave to appeal to the Supreme Court of Canada in related matters.

The Court Martial Appeal Court of Canada dismissed the motion, noting that significant delays had already occurred and that an application for leave to appeal is not intended to freeze the wheels of justice.

The Court held that it is in the interests of the administration of justice that the appeal be heard on its merits expeditiously.

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.