Supreme Court of Canada

R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144

Parties

Master Corporal C.J. Stillman — Appellant

v.

Her Majesty The Queen — Respondent

— and —

Ex-Petty Officer 2nd Class J.K. Wilks — Appellant

v.

Her Majesty The Queen — Respondent

— and —

Warrant Officer J.G.A. Gagnon — Appellant

v.

Her Majesty The Queen — Respondent

— and —

Corporal F.P. Pfahl — Appellant

v.

Canada (Minister of National Defence) — Respondent

— and —

Corporal A.J.R. Thibault — Appellant

v.

Her Majesty The Queen — Respondent

— and —

Second Lieutenant Soudri — Appellant

v.

Her Majesty The Queen — Respondent

— and —

K39 842 031 Petty Officer 2nd Class R.K. Blackman — Appellant

v.

Her Majesty The Queen — Respondent

and

Advocates for the Rule of Law — Intervener

— and —

Her Majesty The Queen — Appellant

v.

Corporal R.P. Beaudry — Respondent

and

Advocates for the Rule of Law — Intervener

Indexed as: R. v. Stillman

2019 SCC 40

File Nos.: 37701, 38308.

2019: March 26; 2019: July 26.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown and Rowe JJ.

On appeal from the Court Martial Appeal Court of Canada

Headnote

Constitutional law — Charter of Rights — Right to trial by jury — Military exception — Armed forces — Military offences — Accused charged with offences under s. 130(1)(a) of National Defence Act, which transforms criminal and other federal offences into service offences triable by military justice system — Accused denied jury trial based on military exception to constitutional right to trial by jury for offences where maximum punishment is imprisonment for five years or more — Whether s. 130(1)(a) of National Defence Act is inconsistent with constitutional right to trial by jury in its application to serious civil offences — Whether service offence tried under s. 130(1)(a) engages military exception such that right to trial by jury may be denied — Canadian Charter of Rights and Freedoms, s. 11(f) — National Defence Act, R.S.C. 1985, c. N‑5, s. 130(1)(a).

The accused persons, each a member of the Armed Forces at the relevant time, were charged with one or more service offences under s. 130(1)(a) of the National Defence Act ("NDA"). Before various standing courts martial, all but one of the accused persons unsuccessfully asserted their right to a trial by jury under s. 11(f) of the Charter; maintained that the military exception found in that provision was not engaged in their circumstances; and claimed that, since s. 130(1)(a) brought them within the military justice system (which does not provide for a trial by jury), it is inconsistent with their s. 11(f) right. The appeals to the Court Martial Appeal Court resulted in two conflicting judgments: the accused persons' appeals in R. v. Déry, 2017 CMAC 2, 391 C.R.R. (2d) 156 ("Stillman"), were dismissed on the basis of horizontal stare decisis, and the appeal in R. v. Beaudry, 2018 CMAC 4, 430 D.L.R. (4th) 557, was allowed, resulting in a declaration that s. 130(1)(a) is inconsistent with s. 11(f) of the Charter and is of no force or effect in its application to any civil offence for which the maximum sentence is imprisonment for five years or more ("serious civil offence").

Held (Karakatsanis and Rowe JJ. dissenting): The appeals in Stillman should be dismissed. The appeal in Beaudry should be allowed, the declaration that s. 130(1)(a) of the NDA is of no force or effect in its application to any serious civil offence should be set aside, and the conviction restored.

Per Wagner C.J. and Abella, Moldaver, Côté and Brown JJ.: Section 130(1)(a) of the NDA is not inconsistent with s. 11(f) of the Charter. The words "an offence under military law" in s. 11(f) refer to a service offence that is validly enacted pursuant to Parliament's power over "Militia, Military and Naval Service, and Defence" under s. 91(7) of the Constitution Act, 1867. The Court's jurisprudence establishes that Parliament has validly enacted s. 130(1)(a) of the NDA under this head of power. It also establishes that s. 130(1)(a) is not overbroad under s. 7 of the Charter. Where, therefore, a serious civil offence is tried as a service offence under s. 130(1)(a), it qualifies as "an offence under military law", thereby engaging the military exception in s. 11(f) of the Charter.

Generally speaking, the same core interpretive principles that apply to rights stated in the Charter also apply to exceptions stated in the Charter. They are to be read purposively, rather than in a technical or legalistic fashion. Just as courts must take care not to overshoot the purpose of a Charter right by giving it an unduly generous interpretation, so too must they be careful not to undershoot the purpose of a Charter exception by giving it an unduly narrow interpretation. Since a Charter exception can be understood only if the right it qualifies is understood, courts should consider the two together.

The right to a trial by jury serves two main purposes. At the individual level, it protects the accused by giving him or her the benefit of a trial by his or her peers. Since the right is held by the accused, this individual dimension is of utmost importance. At the societal level, it provides a vehicle for public education about the criminal justice system and lends the weight of community standards to trial verdicts. Notwithstanding the significance of these twin purposes, the right to a jury trial is not absolute. Rather, s. 11(f) of the Charter carves out an internal exception to this right that applies to "an offence under military law tried before a military tribunal" (in French, "une infraction relevant de la justice militaire").

The inclusion of this military exception in s. 11(f) shows that the Charter contemplates a parallel system of military justice designed to foster discipline, efficiency, and morale in the military. Canada's military justice system has always been separate from the civilian justice system, and is designed to meet the unique needs of the military. It has evolved from a command-centric disciplinary model that provided weak procedural safeguards, to a parallel system of justice that largely mirrors the civilian justice system. The foundation of Canada's military justice system is the Code of Service Discipline ("CSD"), which is contained in Part III of the NDA, and includes s. 130(1)(a). It defines the standard of conduct to which military personnel are subject and provides for a set of military tribunals to discipline breaches of that standard. Section 130(1)(a) of the NDA transforms most ordinary civil offences that take place in Canada into service offences, thereby giving service tribunals concurrent jurisdiction over such offences when committed by a person who is subject to the CSD. This provision has appeared in the NDA since its enactment, and similar provisions have long existed in the United Kingdom.

While Canada's military justice system has never provided for a trial by jury, it has long provided for a trial before a General Court Martial, which consists of a judge and a military panel. The role of a military panel is unique; panel members bring military experience and integrity to the military judicial process, and provide the input of the military community responsible for discipline and efficiency. In some respects, a military panel is analogous to a jury, and over the years this has become increasingly so. Like a jury, the panel is the trier of fact, while the judge makes rulings on legal questions. Furthermore, panels are required to reach their verdicts unanimously, and it is the judge who is tasked with imposing a sentence in the event of a guilty verdict. However, a military panel is not a jury, and important differences distinguish one from the other. There are sound reasons why the military justice system has opted for a unique military panel model, rather than a jury model. For example, the concept of "members tried by members" fosters morale within the military. Further, Canada's military justice system operates extraterritorially, and service tribunals may have to be convened on short notice in a different part of the world. Where a trial is to be held outside Canada, it would be highly impractical, if not impossible, to convene a jury of Canadian civilians and transport them to the place of trial.

The purpose of the military exception in s. 11(f) of the Charter is to recognize and affirm the existence of a separate military justice system tailored to the unique needs of the military, and to preserve the historical reality that jury trials in cases governed by military law have never existed in Canada. In the specific instance of s. 11(f), the military exception restricts the right to a trial by jury by referring, at least implicitly, to a particular head of power under the Constitution Act, 1867, namely, Parliament's power over the "Militia, Military and Naval Service, and Defence" under s. 91(7) of the Constitution Act, 1867. The text "an offence under military law" in s. 11(f) of the Charter refers to an offence that is validly enacted pursuant to this head of power. Therefore, there must be coherence among the division of powers analysis, the overbreadth analysis, and the meaning of "an offence under military law" in s. 11(f). The Court's jurisprudence establishes that Parliament has validly enacted s. 130(1)(a) of the NDA under the authority granted to it by s. 91(7) of the Constitution Act, 1867. It also establishes that s. 130(1)(a) is not overbroad under s. 7 of the Charter. It follows, therefore, that a serious civil offence tried as a service offence under s. 130(1)(a) qualifies as "an offence under military law" for the purposes of s. 11(f) of the Charter. Accordingly, it is not inconsistent with s. 11(f) of the Charter, as it does not deprive a person who is lawfully entitled to a jury of that right.

A serious civil offence tried as a service offence under s. 130(1)(a) qualifies as "an offence under military law" for the purposes of s. 11(f) of the Charter whether or not there is a heightened "military nexus" going beyond the accused's military status. There are compelling reasons why the "military nexus" doctrine should not be resurrected. Firstly, the Court in R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, identified the "military nexus" required to ground a rational connection to discipline, efficiency, and morale in the military — the accused's military status. Secondly, a number of the offences listed in ss. 73 to 129 of the NDA, which the parties do not contest are "offence[s] under military law", can be committed in the absence of a heightened "military nexus" (e.g., "stealing" under s. 114). If no heightened "military nexus" is required to preserve the status of these offences as "offence[s] under military law", then it would be inconsistent to impose such a requirement in relation to offences under s. 130(1)(a). Thirdly, the imposition of a heightened "military nexus" requirement would risk causing military courts to engage in an unwieldy and unhelpful threshold inquiry that distracts from the merits. Fourthly, the fundamental purposes of sentencing in the military justice system differ from those in the civilian criminal justice system. Were serious civil offences committed by persons subject to the CSD to be streamed into the civilian justice system, sentencing decisions in those cases might not truly account for the seriousness of such offences, seen in light of the purposes of discipline, efficiency, and morale. Fifthly, while military prosecutors may engage in an inquiry that resembles a "military nexus" test when assessing whether to exercise jurisdiction in a particular case, the existence of jurisdiction must be separated from the exercise of jurisdiction. Finally, these concerns are reinforced by practical considerations. Imposing a heightened "military nexus" requirement would go against the objective of responding swiftly to misconduct within the military and thereby enhancing discipline, efficiency, and morale in the military.

Per Karakatsanis and Rowe JJ. (dissenting): Based on the nature and purpose, language, and history of the jury trial right and its exception, s. 130(1)(a) of the NDA does not comply with s. 11(f) of the Charter to the extent that it denies service members the right to a jury trial for serious offences that do not have a military connection. Thus, s. 130(1)(a) falls within the scope of the military exception to the Charter right to a jury trial only to the extent that there is a direct connection between the circumstances of the offence and the military. Because striking down the legislative provision would go further than the Charter breach requires and prevent the trial of all offences by military courts designated in s. 130(1)(a), a military connection requirement should be read into s. 130(1)(a) to respect s. 11(f) of the Charter.

The meaning of a Charter right is to be understood by analyzing the purpose of the guarantee and the interests it is meant to protect. The purpose of the right is ascertained by reference to the character and larger objectives of the Charter, the language of the right, the historical origins of the concepts enshrined, and where applicable, the meaning and purpose of the other specific rights with which it is associated within the text of the Charter. The interpretation should be generous and aimed at fulfilling the guarantee and securing for individuals the full benefit of the Charter protection without overshooting the purpose of the right. Exceptions should not be construed more widely than is necessary to fulfil the values which support them. In order to determine whether an exception is undermining the broad purpose of the right beyond the intended scope of the exception, it is essential to consider the rationales underlying the right and the exception together. Section 11(f) is an illustration of a fundamental right to life, liberty and security of the person guaranteed in s. 7. But s. 11(f) also offers a specific protection that s. 7 does not. Legislation found constitutional with respect to s. 7 is not necessarily constitutional under s. 11, or vice versa. Thus, the finding in Moriarity that s. 130(1)(a) of the NDA did not violate s. 7 for overbreadth does not answer the question of whether the provision violates s. 11(f). The purpose of s. 11(f) is to guarantee the right to a jury trial, which protects both an individual and societal interest in trials by jury. Effect must be given to both aspects of the right. A trial before a military panel does not mirror the civilian justice system when the broader society cannot participate.

Over the past four decades, the development of a military connection test in Canada has limited military court jurisdiction to offences that are military in nature or take place in military circumstances. Military court jurisdiction has historically been subject to important limits. Initially, the types of offences that could be tried by military courts were limited to offences that were specific to the military, such as desertion, mutiny and sedition. It was generally appropriate for offences to be heard by military courts rather than civilian courts where quick and efficient justice was necessary to uphold discipline, such as when offences were committed during wartime or abroad. As the jurisdiction of military courts expanded to include civilian offences, civilian courts maintained primary jurisdiction where offences were triable in either court. Courts developed the military connection test to determine when it was appropriate to depart from the primacy of civilian court jurisdiction. That test asked whether a service member committed an offence connected to the military, having regard to the nature of the offence, the circumstances of its commission and whether the offence would tend to affect military discipline and efficiency.

The Court in Moriarity did not foreclose the possibility of the military connection test, and it continues to be applied in practice by military prosecutors. Determining whether there is a military connection may involve careful consideration and difficult judgment calls, but it is a necessary exercise in light of the constitutional rights at stake. Courts are better placed to make such determinations rather than leaving them to the discretion of the prosecutor. The constitutionality of a legislative provision cannot depend on the assumption that discretion will be properly exercised. Requiring a military connection test is unlikely to result in further backlogs in civilian courts. Even if there was evidence to suggest that the military justice system suffers from fewer delays than the civilian system, the possibility of delay is not a proper basis to deny an accused their right to a jury trial.

It is the role of the courts to interpret the words expressing the military exception in s. 11(f) of the Charter to define the range of offences that Parliament can exclude from the right to a trial by jury. Legislative competence and overbreadth are not the only limits on Parliament's power. It is not up to Parliament to be the arbiter of constitutional rights by defining what the scope of the military exception means. Based on a purposive interpretation, the term "offence under military law" refers to an offence that is connected to the military in its nature or committed in circumstances sufficiently connected to the military that would directly affect discipline, efficiency and morale.

Where an accused is charged with an offence that falls under s. 130(1)(a) of the NDA and the accused challenges the military court's jurisdiction on the basis that it would deny their right to a jury trial guaranteed in s. 11(f), the court should ask whether there is a military connection. Has a service member committed an offence in circumstances that are so connected to the military that it would have a direct effect on military discipline, efficiency and morale? To determine whether there is a sufficiently direct connection, a court should consider whether the offence was committed while the accused was on duty, on military property or using military property. If so, a court may infer that the circumstances of the offence have a direct impact on military efficiency, discipline and morale. The prosecution may point to other circumstances of the offence to show such an impact.

Section 130(1)(a) of the NDA cannot be saved by s. 1 of the Charter. The provision is not carefully tailored to its objectives, as it impairs the right to a jury trial more than is reasonably necessary. The objective of maintaining discipline, efficiency and morale in the Armed Forces is sufficiently pressing and substantial, but it is not obvious that it requires trying ordinary offences in military courts. A minimally impairing alternative would have been to try penal offences by military panel only where the circumstances in which it was committed are directly connected to the military. The appropriate remedy is to read a military connection requirement into s. 130(1)(a), as it immediately reconciles the legislation in question with the requirements of the Charter.

Cases Cited

By Moldaver and Brown JJ.

Referred to: R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; MacKay v. The Queen, 1980 CanLII 217 (SCC), [1980] 2 S.C.R. 370; R. v. Généreux, 1992 CanLII 117 (SCC), [1992] 1 S.C.R. 259; R. v. Royes, 2016 CMAC 1, 338 C.C.C. (3d) 183; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v. Bryant (1984), 1984 CanLII 2026 (ON CA), 48 O.R. (2d) 732; R. v. Lee, 1989 CanLII 21 (SCC), [1989] 2 S.C.R. 1384; R. v. Trépanier, 2008 CMAC 3, 232 C.C.C. (3d) 498; R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296; R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509; R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398; R. v. Mac, 2002 SCC 24, [2002] 1 S.C.R. 856; R. v. Lunn (1993), 1993 CanLII 8748 (CMAC), 5 C.M.A.R. 157; R. v. Brown (1995), 1995 CanLII 10773 (CMAC), 5 C.M.A.R. 280; R. v. Nystrom, 2005 CMAC 7; O'Callahan v. Parker (1969), 395 U.S. 258; Solorio v. United States (1987), 483 U.S. 435; R. v. MacDonald (1983), 1983 CanLII 3128 (CMAC), 4 C.M.A.R. 277; Ionson v. The Queen (1987), 1987 CanLII 8888 (CMAC), 4 C.M.A.R. 433; Ryan v. The Queen (1987), 1987 CanLII 8897 (CMAC), 4 C.M.A.R. 563; R. v. Moriarity, 2014 CMAC 1, 455 N.R. 59; R. v. Larouche, 2014 CMAC 6, 460 N.R. 248; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; R. v. CIP Inc., 1992 CanLII 95 (SCC), [1992] 1 S.C.R. 843; MacKay v. Rippon, 1977 CanLII 3028 (FC), [1978] 1 F.C. 233; R. v. Ryan, 2018 CM 2033; R. v. Reddick (1996), 1996 CanLII 17940 (CMAC), 112 C.C.C. (3d) 491.

By Karakatsanis and Rowe JJ. (dissenting)

MacKay v. The Queen, 1980 CanLII 217 (SCC), [1980] 2 S.C.R. 370; R. v. Généreux, 1992 CanLII 117 (SCC), [1992] 1 S.C.R. 259; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296; R. v. Lee, 1989 CanLII 21 (SCC), [1989] 2 S.C.R. 1384; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; Air Canada v. British Columbia, 1989 CanLII 95 (SCC), [1989] 1 S.C.R. 1161; R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309; R. v. CIP Inc., 1992 CanLII 95 (SCC), [1992] 1 S.C.R. 843; R. v. Smith (Edward Dewey), 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045; R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509; Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Amax Potash Ltd. v. Government of Saskatchewan, 1976 CanLII 15 (SCC), [1977] 2 S.C.R. 576; Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433; R. v. Larouche, 2014 CMAC 6, 460 N.R. 23; Grant v. Gould (1792), 2 H. Bl. 69, 126 E.R. 434; R. v. MacDonald (1983), 1983 CanLII 3128 (CMAC), 4 C.M.A.R. 277; R. v. MacEachern (1985), 1985 CanLII 3494 (CMAC), 4 C.M.A.R. 447; Ryan v. The Queen (1987), 1987 CanLII 8897 (CMAC), 4 C.M.A.R. 563; Ionson v. The Queen (1987), 1987 CanLII 8888 (CMAC), 4 C.M.A.R. 433, aff'd 1989 CanLII 5 (SCC), [1989] 2 S.C.R. 1073; R. v. Brown (1995), 1995 CanLII 10773 (CMAC), 5 C.M.A.R. 280; O'Callahan v. Parker (1969), 395 U.S. 258; Relford v. Commandant (1971), 401 U.S. 355; R. v. Catudal (1985), 1985 CanLII 3584 (CACM), 4 C.M.A.R. 338; Solorio v. United States (1987), 483 U.S. 435; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Hannah, 2013 CM 2011; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; Re Colonel Aird, [2004] HCA 44, 209 A.L.R. 311; Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] 1 S.C.R. 493; Schachter v. Canada, [1992] 2 S.C.R. 67.

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Morel, André. "Certain Guarantees of Criminal Procedure", in Walter S. Tarnopolsky and Gérald‑A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms: Commentary. Toronto: Carswell, 1982, 367.

Pitzul, Jerry S.T., and John C. Maguire. "A Perspective on Canada's Code of Service Discipline" (2002), 52 A.F.L. Rev. 1.

Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: Lexis Nexis, 2014.

Walker, Janet. "A Farewell Salute to the Military Nexus Doctrine" (1993), 2 N.J.C.L. 366.

Walker, Janet. "Military Justice: From Oxymoron to Aspiration" (1994), 32:1 Osgoode Hall L.J. 1.

Counsel

Jean‑Bruno Cloutier and Mark Létourneau, for the appellants (37701) and the respondent (38308).

Bruce W. MacGregor, Q.C., Dylan Kerr and Anthony M. Tamburro, for the respondents (37701) and the appellant (38308).

Adam Goldenberg, Peter Grbac and Asher Honickman, for the intervener Advocates for the Rule of Law (37701 and 38308).

Appeals

APPEALS from a judgment of the Court Martial Appeal Court of Canada (Bell C.J. and Cournoyer and Gleason JJ.A.), 2017 CMAC 2, 391 C.R.R. (2d) 156, [2017] C.M.A.J. No. 2 (QL), 2017 CarswellNat 2522 (WL Can.), affirming a decision of Perron M.J., 2013 CM 4028, 2013 CarswellNat 11404 (WL Can.), decisions of D'Auteuil M.J., 2013 CM 3032, 2013 CarswellNat 6527 (WL Can.); 2014 CM 3024, 2014 CarswellNat 8526 (WL Can.); 2015 CM 3007, 2015 CarswellNat 5821 (WL Can.); and 2015 CM 3009, 2015 CarswellNat 4878 (WL Can.), and a decision of Dutil M.J., rendered on August 22, 2014, and setting aside a decision of Dutil M.J., 2015 CM 1001, 2015 CarswellNat 146 (WL Can.). Appeals dismissed, Karakatsanis and Rowe JJ. dissenting.

APPEAL from a judgment of the Court Martial Appeal Court of Canada (Bell C.J. and Gagné and Ouellette JJ.A.), 2018 CMAC 4, 430 D.L.R. (4th) 557, [2018] C.M.A.J. No. 4 (QL), 2018 CarswellNat 5345 (WL Can.), setting aside a decision of Pelletier M.J., 2016 CM 4010, 2016 CarswellNat 3501 (WL Can.). Appeal allowed, Karakatsanis and Rowe JJ. dissenting in part.

Joint Reasons for Judgment

(paras. 1 to 114)

Moldaver and Brown JJ. (Wagner C.J. and Abella and Côté JJ. concurring) —

I. Overview

[1] Section 11(f) of the Canadian Charter of Rights and Freedoms guarantees every person charged with an offence carrying a punishment of at least five years' imprisonment the right to the benefit of a jury trial, "except in the case of an offence under military law tried before a military tribunal" (in French, "sauf s'il s'agit d'une infraction relevant de la justice militaire"). In these appeals, we must determine the scope of this "military exception". More particularly, we must decide whether an offence under s. 130(1)(a) of the National Defence Act, R.S.C. 1985, c. N-5 ("NDA") falls within its scope.

[2] Since the earliest days of organized military forces in post-Confederation Canada, a separate system of military justice has operated parallel to the civilian justice system. Tailored to the unique needs of the Armed Forces, this system's processes "assure the maintenance of discipline, efficiency and morale of the military" (R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 46).

[3] Section 130(1)(a) creates, by way of incorporation, service offences that add to those already contained in the CSD. It establishes, as a service offence, any "act or omission that takes place in Canada and is punishable under . . . the Criminal Code or any other Act of Parliament". This transforms most ordinary civil offences committed by persons subject to the Code of Service Discipline ("CSD") into service offences. As the Court noted in MacKay v. The Queen, 1980 CanLII 217 (SCC), [1980] 2 S.C.R. 370 ("MacKay"), at p. 397, Parliament has validly enacted s. 130(1)(a) pursuant to its power under s. 91(7) of the Constitution Act, 1867.

[4] This Court has considered s. 130(1)(a) on several prior occasions. Nearly four decades ago in MacKay, the Court confirmed that the enactment of a provision transforming ordinary civil offences into service offences is a valid exercise of Parliament's power over "Militia, Military and Naval Service, and Defence" under s. 91(7) of the Constitution Act, 1867. Then, in R. v. Généreux, 1992 CanLII 117 (SCC), [1992] 1 S.C.R. 259, the Court held that while there is a need for a separate military justice system, this system must nonetheless provide those charged with service offences adequate procedural protections. More recently, in R. v. Moriarity, 2015 SCC 55, the Court confirmed that s. 130(1)(a) of the NDA does not violate s. 7 of the Charter for overbreadth.

[5] The accused persons now before this Court, all of whom were members of the Armed Forces at the relevant time, were each charged with one or more service offences under s. 130(1)(a). The underlying offences include sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46, forgery contrary to s. 367 of the Criminal Code, and theft contrary to the Financial Administration Act, R.S.C. 1985, c. F-11. None of the accused persons were tried before a General Court Martial, which includes a military panel. Instead, they were tried before a Standing Court Martial, which has a military judge sitting alone, without a military panel. They all challenged their denial of a jury trial.

[6] Before this Court, the accused persons submit that the only "offence[s] under military law" captured by the military exception in s. 11(f) are those listed in ss. 73-129 of the NDA, which include spying for the enemy (s. 78), mutiny with violence (s. 79), insubordination (s. 85), and absence without leave (s. 90). In their view, these are the only "truly" military offences; offences incorporated by reference from the Criminal Code and other federal statutes pursuant to s. 130(1)(a) are not "offence[s] under military law" in the constitutional sense.

[7] The Crown, in contrast, submits that any service offence that is validly enacted pursuant to Parliament's authority under s. 91(7) of the Constitution Act, 1867, qualifies as "an offence under military law" for the purposes of s. 11(f). It maintains that a service offence under s. 130(1)(a) qualifies as an "offence under military law" and is thus caught by the military exception.

[8] Finally, and while neither the accused persons nor the Crown urges this Court to impose a "military nexus" requirement, that was the approach endorsed in obiter by the majority in Stillman, and as such it represents a third alternative to be considered.

[9] For reasons that follow, we conclude that s. 130(1)(a) of the NDA is not inconsistent with s. 11(f) of the Charter. In our view, the words "an offence under military law" in s. 11(f) refer to a service offence that is validly enacted pursuant to Parliament's power over "Militia, Military and Naval Service, and Defence" under s. 91(7) of the Constitution Act, 1867. Since the Court's jurisprudence establishes that Parliament has validly enacted s. 130(1)(a) of the NDA under this head of power, and that s. 130(1)(a) is not overbroad under s. 7 of the Charter, a serious civil offence tried as a service offence under s. 130(1)(a) qualifies as "an offence under military law" for the purposes of s. 11(f) of the Charter.

[10] Accordingly, we would dismiss the appeals in Stillman and allow the appeal in Beaudry. The declaration in Beaudry that s. 130(1)(a) is of no force or effect in its application to any civil offence for which the maximum sentence is imprisonment of five years or more is set aside, and the conviction is restored.

II. Charter and Statutory Provision

[11] The two provisions at the heart of these appeals are s. 11(f) of the Charter and s. 130(1)(a) of the NDA:

Canadian Charter of Rights and Freedoms

11. Any person charged with an offence has the right

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

National Defence Act

PART III

Code of Service Discipline

Offences Punishable by Ordinary Law

Service trial of civil offences

130 (1) An act or omission

(a) that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, or

is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2).

III. Decisions Below

A. Standing Courts Martial

[12] The decisions of the various standing courts martial have already been recounted above. In brief, all but one of the accused persons' s. 11(f) challenges failed, leading to appeals to the Court Martial Appeal Court ("CMAC").

B. R. v. Déry, [2017 CMAC 2](https://www.canlii.org/en/ca/cmac/doc/2017/2017cmac2/2017cmac2.html), 391 C.R.R. (2d) 156 (Bell C.J. Concurring, Cournoyer and Gleason JJ.A.)

[13] In Stillman, the CMAC held that it was bound by horizontal stare decisis to follow its previous decision in R. v. Royes, 2016 CMAC 1, 338 C.C.C. (3d) 183, where the court concluded that s. 130(1)(a) is not inconsistent with s. 11(f) of the Charter. In Royes, the court reasoned that the question before it had already been decided by this Court in Moriarity, such that any inconsistency between s. 130(1)(a) and the Charter had already been found not to exist.

[14] In obiter dicta, however, the majority in Stillman added that, in its view, Royes was wrongly decided. It observed that the scope of the military exception in s. 11(f) of the Charter was not before the Court in Moriarity, and that ss. 7 and 11(f) entail mutually distinct analyses. Further, it endorsed a "military nexus" approach, observing that "the term 'offence under military law' cannot simply be determined by whether the legislative provision was validly enacted under s. 91(7)". According to the majority, whether the offence qualifies as "an offence under military law" in a given case should depend on whether there is a heightened "military nexus" beyond the accused's military status.

[15] In his concurring reasons, Bell C.J. agreed with the majority that the court was bound by Royes, but disagreed with the majority's view that Royes was incorrectly decided.

C. R. v. Beaudry, [2018 CMAC 4](https://www.canlii.org/en/ca/cmac/doc/2018/2018cmac4/2018cmac4.html), 430 D.L.R. (4th) 557 (Bell C.J. Dissenting, Gagné and Ouellette JJ.A.)

[16] In Beaudry, the majority held that it was not bound by Royes and Stillman, stating that horizontal stare decisis "will not be applied too strictly" where a citizen's freedom is concerned (para. 19). The majority was fortified in this view by the irreconcilability of Royes and the obiter dicta in Stillman.

[17] Having determined that it was not bound by Royes and Stillman, the majority considered the scope of the military exception in s. 11(f) of the Charter afresh, concluding that the only offences that qualify as "offence[s] under military law" for the purposes of s. 11(f) are those listed in ss. 73 to 129 of the NDA — i.e., the so-called "purely military offences". On this basis, the CMAC declared s. 130(1)(a) of no force or effect in its application to any serious civil offence.

[18] In dissent, Bell C.J. maintained that the court was bound by Royes and Stillman, such that s. 130(1)(a) is not inconsistent with s. 11(f) of the Charter.

IV. Issue

[19] The issue on appeal is whether s. 130(1)(a) of the NDA is inconsistent with s. 11(f) of the Charter. This turns on whether a serious civil offence tried as a service offence under s. 130(1)(a) qualifies as "an offence under military law", thereby engaging the military exception in s. 11(f) of the Charter.

V. Analysis

[20] To resolve the issue raised on these appeals, we will first examine the right to a trial by jury under s. 11(f) of the Charter, then turn to consider the military exception. As we will explain, the inclusion of a military exception shows that s. 11(f) contemplates a parallel system of military justice. We then outline the CSD before turning to the meaning of "an offence under military law".

A. Section 11(f) of the Charter

(1) Principles of Constitutional Interpretation

[21] A Charter right must be understood "in the light of the interests it was meant to protect" (R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 344; see also Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 157), accounting for "the character and the larger objects of the Charter itself" as well as "the language chosen to articulate the specific right or freedom" and "the historical origins of the concept enshrined" (Big M, at p. 344). As Professor Hogg has observed:

In the case of most rights . . . the widest possible reading of the right, which is the most generous interpretation, will "overshoot" the purpose of the right, by including behaviour that is outside the purpose and unworthy of constitutional protection. The effect of a purposive approach is normally to narrow the right, so that only the core behaviour, clearly within the purpose of the right, is covered.

(Constitutional Law of Canada (5th ed. Supp.), at p. 36-30)

[22] Generally speaking, the same core interpretive principles that apply to rights stated in the Charter also apply to exceptions stated in the Charter. They are to be read purposively, rather than in a technical or legalistic fashion. And, just as courts must take care not to "overshoot" the purpose of a Charter right by giving it an unduly generous interpretation, so too must they be careful not to "undershoot" the purpose of a Charter exception by giving it an unduly narrow interpretation. Since a Charter exception can be understood only if the right it qualifies is understood, courts should consider the two together.

[23] Bearing these principles in mind, we turn first to consider the right to a trial by jury under s. 11(f) of the Charter before moving to the military exception.

(2) The Right to a Trial by Jury

[24] Jury trials in English courts can be traced back more than 900 years to the time of William the Conqueror (see R. v. Bryant (1984), 1984 CanLII 2026 (ON CA), 48 O.R. (2d) 732 (C.A.), at p. 742, citing W. S. Holdsworth, A History of English Law (5th ed. 1931), vol. 1, at pp. 312-50). The jury trial played an important role even in the earliest days of the common law. As noted in R. v. Lee, 1989 CanLII 21 (SCC), [1989] 2 S.C.R. 1384, the right to jury trial in England "was regarded with reverence almost bordering on the mystical" (p. 1398).

[25] The modern-day understanding of the nature and importance of the right to a trial by jury was explained in R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296, where Wilson J. wrote:

The right of the accused to receive a trial before a judge and jury of his or her peers is an important right which individuals have historically enjoyed in the common law world. The jury has often been praised as a bulwark of individual liberty. Sir William Blackstone, for example, called the jury "the glory of the English law", the right to which "is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty or his person, but by the unanimous consent of twelve of his neighbours and equals" (W. Blackstone, Commentaries on the Law of England, Book 4 (1765), c. 27, at pp. 379-80). More recently, Chief Justice Dickson of this Court described the jury as "a bulwark against oppression and the misuse of state power" (Regina v. Burant, unreported, cited in Martin's Annual Criminal Code (1989), at p. SM-25).

The jury serves collective or social interests in addition to protecting the individual. The jury advances social purposes primarily by acting as a vehicle of public education and lending the weight of community standards to trial verdicts. Sir James Stephen underlined the collective interests served by the jury:

. . . trial by jury interests large numbers of people in the administration of justice and makes them responsible for it. It is difficult to over-estimate the importance of this. It gives a degree of power and of popularity to the administration of justice which could hardly be derived from any other source.

(J. Stephen, A History of the Criminal Law of England (1883), vol. I, at p. 573.)

In both its study paper (The Jury in Criminal Trials (1980), at pp. 5-17) and in its report to Parliament (The Jury (1982), at p. 5) the Law Reform Commission of Canada recognized that the jury functions both as a protection for the accused and as a public institution which benefits society in its exposure to the functioning of the administration of justice. (pp. 1308-9)

[26] Not long after Turpin was decided, L'Heureux-Dubé J. described the role and significance of the jury as an institution in R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509:

The jury, through its collective decision making, is an excellent fact finder; due to its representative character, it acts as the conscience of the community; the jury can act as the final bulwark against oppressive laws or their enforcement; it provides a means whereby the public increases its knowledge of the criminal justice system and it increases, through the community's involvement, the accessibility and quality of justice. (p. 523)

[27] More recently, the majority in R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, emphasized that "[t]he right to be tried by a jury of one's peers is one of the cornerstones of our criminal justice system" (para. 1). This is illustrated by the fact that under s. 471 of the Criminal Code, all persons charged with an indictable offence with a maximum of 14 years or more must be tried by jury.

[28] This brief review reveals that the right to a jury serves two main purposes. First, at the individual level, it protects the accused by giving him or her the benefit of a trial by his or her peers. Since the right is held by the accused, this individual dimension is of utmost importance. Second, at the societal level, it provides a vehicle for public education about the criminal justice system and lends the weight of community standards to trial verdicts.

[29] Notwithstanding the significance of these twin purposes, the right to a trial by jury is not absolute. Rather, s. 11(f) carves out an internal exception to this right, which distinguishes it from most other Charter rights.

(3) The Military Exception

[30] Section 11(f) carves out an exception to the right to a trial by jury that applies to "an offence under military law tried before a military tribunal" (in French, "une infraction relevant de la justice militaire"). This exception "contemplate[s] the existence of a system of military tribunals for the trial of offences" (R. v. Trépanier, 2008 CMAC 3, 232 C.C.C. (3d) 498, at para. 74).

(a) The Shared Meaning of the English and French Text

[31] A preliminary interpretive issue arose in Beaudry. The English text in s. 11(f) appears to differ in substance from the French. The English version refers to two separate components: for the exception to apply, the offence must be both (1) "under military law" and (2) "tried before a military tribunal". The French version uses the single phrase "relevant de la justice militaire" ("relating to military justice"), which appears, at first glance, to relate only to the forum.

[32] As Bastarache J. stated in R. v. Mac, 2002 SCC 24, [2002] 1 S.C.R. 856, "statutory interpretation of bilingual enactments begins with a search for the shared meaning between the two versions" (para. 5, citing P.-A. Côté, Interpretation of Legislation in Canada (3rd ed. 2000), at p. 327). The shared meaning rule is applied where there is an apparent discrepancy between the two versions of a bilingual enactment.

[33] In our view, the English and French texts share a single meaning. Whereas the English version refers to substantive law ("military law") and forum ("military tribunal") independently, the French version simply uses the more compendious "relevant de la justice militaire" (under the military justice system). In other words, "justice militaire" in the French version encapsulates both the forum and the substantive law, in much the same way as the English version refers to them explicitly.

[34] In determining the scope of the military exception, we will first turn to the system of military justice contemplated by this exception.

B. Canada's Military Justice System

(1) The Existence and Purpose of Canada's Parallel System of Military Justice

[35] Canada's military justice system has always been separate from the civilian justice system. "[D]eeply entrenched in our history" (Généreux, at p. 295), its purpose is to provide processes that will "assure the maintenance of discipline, efficiency and morale of the military" (Moriarity, at para. 46).

[36] The military justice system is therefore designed to meet the unique needs of the military with respect to discipline, efficiency, and morale. As Lamer C.J. wrote in Généreux, "[t]o maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently" (p. 293).

(2) Early History

[37] Canadian military law traces its roots to the United Kingdom (see Office of the Judge Advocate General, Draft Internal Report — Court Martial Comprehensive Review, January 17, 2018 (online) ("CMCR Interim Report"), at p. 31, citing R. A. Macdonald, "The Trail of Discipline: The Historical Development of Military Law" (1975), 32:1 U. Toronto Fac. L. Rev. 1). The Mutiny Act of 1689, which was enacted in the immediate aftermath of the Glorious Revolution of 1688, was primarily aimed at preventing mutiny and desertion by members of the military. It created a military tribunal composed of officers to try such offences.

[38] Until the NDA was enacted in 1950, control over military discipline was concentrated in the chain of command, consistent with the prevailing attitudes of the time that military discipline was the prerogative of commanders, and that "the soldier should learn to look to his officer alone for justice, and not elsewhere" (H. Clode, The Administration of Justice Under Military and Martial Law (1872), at p. 43).

[39] Hence, at this early stage of the Canadian military justice system's development, the system was largely a "command-centric disciplinary tool" (CMCR Interim Report, at p. 51). The need for commanders to have access to "an instrument for dealing with serious misconduct by their personnel that is separate from civilian justice mechanisms" (ibid.) was recognized early, and has been consistently embraced ever since.

(3) The National Defence Act of 1950

[40] After World War II, Canada sought to reform its military law (see CMCR Interim Report, at p. 32). The centrepiece of this reform effort was the National Defence Act, S.C. 1950, c. 43, which amalgamated several military statutes into a single piece of legislation, created a uniform Code of Service Discipline applicable to all branches of the Canadian Forces, and — crucially — established provisions transforming most ordinary civil offences into service offences (s. 119(1)(a)).

[41] The NDA of 1950, ushered in a new era of military justice — it "represented a major evolution toward standards of justice that applied in civilian criminal courts in a number of ways" (ibid.). For example, it created a statutory right of appeal from findings and sentences of courts martial to the Court Martial Appeal Court.

(4) Charter-Era Reforms to the National Defence Act

[42] For almost half a century, the NDA remained largely unchanged (see CMCR Interim Report, at p. 34). Beginning in the early 1990s, however, important amendments and associated regulations were implemented in response to changing attitudes regarding due process, legal developments such as the Charter, and other matters.

[43] As to regulatory reform, in 1990 the Governor-in-Council amended the Queen's Regulations and Orders for the Canadian Forces, which are the main source of regulations governing the military, in an effort to strengthen the military justice system by providing more independence to key actors in that system.

[44] Jurisprudential developments included the 1992 constitutional challenge in Généreux to parts of the pre-1990 regime. The appellant in that case argued that a General Court Martial under the pre-1990 regime was not "an independent and impartial tribunal" within the meaning of s. 11(d) of the Charter. Lamer C.J. articulated the need for the military justice system to meet the standards of natural justice that society expects: it is necessary that "there should be some tribunal to hear appeals and to ensure that the rights of all accused persons are respected", and it must be "independent and impartial" (p. 293).

[45] That said, Lamer C.J. found shortcomings in the independence and impartiality of the General Court Martial as it existed under the pre-1990 regime. For example, there was no formal prohibition against evaluating officers on the basis of their performance at a General Court Martial for the purposes of promotion. As a result, some aspects of the pre-1990 regime were declared constitutionally invalid.

[46] Two detailed reports on the Canadian military justice system, both published in 1997, also contributed to significant reform. The first was a federal Commission of Inquiry report on serious misconduct by members of the Canadian Forces during a 1993 United Nations peacekeeping mission in Somalia. The Commission made 160 recommendations, including numerous proposals for the reform of the military justice system.

[47] As the Commission was concluding its work, the Minister of National Defence created a Special Advisory Group on Military Justice and Military Police Investigation Services, chaired by the Right Honourable Brian Dickson. The resulting Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (1997) ("Dickson Report") proposed wide-ranging reforms to the military justice system, including measures to strengthen the independence of military judges, the Director of Military Prosecutions, Defence Counsel Services, and the Court Martial Administrator, as well as measures to improve representation of non-commissioned members on military panels.

[48] In response to Généreux and the reports outlined above, Parliament introduced Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, 1st Sess., 36th Parl., 1998 (assented to December 10, 1998). Bill C-25 brought about the "most extensive set of amendments" to the NDA since 1950 (CMCR Interim Report, at p. 35). Among its key elements, Bill C-25:

• It made numerous changes to the [Minister of National Defence's] quasi-judicial roles and discretionary oversight powers. For instance, the power of review of court martial decisions, and the power to appoint military judges, shifted from Minister to the Governor in Council;

• It provided a statutory basis for independent military judges, in terms of tenure, remuneration, and removal only through an inquiry committee process;

• It shifted prosecution functions to a new independent Director of Military Prosecutions (DMP), away from the supervision of senior military authorities, in a way that is now in direct parallel with the federal civilian model;

• It created an independent Director of Defence Counsel Services (DDCS), who is responsible for the provision of legal counsel to those accused persons who face courts martial;

• It shifted responsibility for convening courts martial and appointing military panel members to an independent Court Martial Administrator (CMA) (a civilian who works under the supervision of the Chief Military Judge (CMJ)) out of the hands of senior military authorities;

• It shifted responsibility for the determination of sentence from the panel of military members to the military judge presiding at a court martial;

• It eliminated the death penalty and the hard labour component of the punishment of imprisonment; and,

• It eliminated the previous 3-year limitation period for service offences tried by courts martial.

Stated succinctly, "Bill C-25 was important to the evolution of the court martial system because it established institutions and independence mechanisms within the system that substantially aligned it with Canada's civilian criminal justice system, while preserving many of the historic aspects of a military court martial system" (CMCR Interim Report, at p. 35).

[49] Bill C-25 also mandated periodic, independent reviews of the implementation of the bill. The first independent review was conducted in 2003 by the Right Honourable Antonio Lamer (see Department of National Defence, The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. (2003)). His review recommended, among other things, that the court martial system be streamlined by reducing the available types of courts martial from four to two. This recommendation was incorporated into Bill C-15, assented to in 2013, which reduced the number of court martial types to two: Standing Courts Martial and General Courts Martial.

[50] Trépanier was significant: as the court martial selection process had been declared unconstitutional, no court martial could be convened. This led Parliament to enact Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, 2nd Sess., 39th Parl., 2008, which permitted the accused to choose between a Standing Court Martial and a General Court Martial.

[51] The second independent review of Bill C-25 was submitted in 2011 by the Honourable Patrick J. LeSage (see Department of National Defence, Report of the Second Independent Review Authority to The Honourable Peter G. MacKay, Minister of National Defence, by The Honourable Patrick J. LeSage (2011)). The LeSage Report concluded that the Canadian military justice system is functioning well and recommended further improvements. Several of these recommendations were incorporated in Bill C-15.

[52] While several independent reports have concluded that Canada's military justice system is functioning well, that is not to say problems do not exist. In her 2015 External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces, March 27, 2015 (online), the Hon. Marie Deschamps identified a pervasive problem of sexual harassment and violence in the military.

[53] The military justice system has come a long way. It has evolved from a command-centric disciplinary model that provided weak procedural safeguards, to a parallel system of justice that largely mirrors the civilian criminal justice system. Many of the key recommendations contained in the various independent reviews have been incorporated into the NDA.

[54] Against this historical backdrop, we turn to the military justice system as it exists today.

C. The CSD

[55] The foundation of Canada's military justice system is the CSD, which is contained in Part III of the NDA. This detailed code is "an essential ingredient of service life" (MacKay, at p. 400) that "defines the standard of conduct to which military personnel and certain civilians are subject and provides a set of military tribunals and procedures for the punishment of those who fail to comply with that standard" (Moriarity, at para. 10).

(1) Persons Subject to the CSD

[56] Section 60 of the NDA lists the categories of persons who are subject to the CSD. The list includes officers and non-commissioned members of the regular or special forces, officers and non-commissioned members of the reserve force when the member is on active service, persons who accompany a unit or other element of the Canadian Forces that is on active service, persons who are detained in a service prison or detention barrack, and others.[^3]

(2) Service Offences

[57] Section 2 of the NDA defines a "service offence" as "an offence under this Act, the Criminal Code or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline". For purposes of these appeals, there are two key categories of offences in the NDA: (a) "uniquely military offences" under ss. 73-129 of the NDA; and (b) ordinary civil offences tried as service offences pursuant to s. 130(1)(a) of the NDA.[^4]

(a) "Uniquely Military Offences" Under Sections 73-129

[58] Sections 73 to 129 of the NDA create what may be called "uniquely military offences" (CMCR Interim Report, at p. 43). The types of conduct prohibited by these sections include spying for the enemy, mutiny, and insubordination. The maximum punishments for these offences range from dismissal to life imprisonment.

(b) Ordinary Civil Offences Tried as Service Offences Under Section 130(1)(a)

[59] Section 130(1)(a) provides that "[a]n act or omission . . . that takes place in Canada and is punishable under Part VII ["Offences Triable by Civil Courts"], the Criminal Code or any other Act of Parliament . . . is an offence under this Division ["Service Offences and Punishments"] and every person convicted thereof is liable to suffer punishment as provided in subsection (2)."[^5] Thus, most ordinary civil offences committed by persons subject to the CSD become service offences pursuant to s. 130(1)(a).

[60] This is hardly novel. This provision has appeared in the NDA since its enactment (see s. 119), and similar provisions transforming ordinary civil offences into offences under military law had long existed in the United Kingdom. The Army Act, 1881 (U.K.), 44 & 45 Vict., c. 58, provided that a "[p]erson subject to military law who commits any of the following offences . . . that is to say, (3) [s]teals, or fraudulently misapplies or receives any property . . . shall . . . be liable to suffer . . . penal servitude" (s. 41). In addition, the Army Act, 1881 (U.K.) also provided that "[e]very person subject to military law who commits any offence punishable by the ordinary law of the land shall be deemed to be guilty of an offence against military law" (s. 41(48)(3)).

D. Types of Proceedings in the Military Justice System

[61] As described in Department of National Defence, Military Justice at the Summary Trial Level, January 12, 2011 (online) ("Military Justice"), there are two types of proceedings in the military justice system: summary trials and court martial proceedings.

(1) Summary Trials

[62] A summary trial, which is the predominant form of proceedings for less serious offences, permits as a general rule a service offence to be tried at the unit level by a commanding officer, delegate of a commanding officer, or superior commander. There is no requirement that the presiding officer be legally trained. A summary trial may result in a fine of up to $500, but not imprisonment. Due to the less serious consequences flowing from summary trials, some Charter protections do not apply: for example, no right to counsel exists.

(2) Court Martial Proceedings

[63] A court martial is a formal military court presided over by a legally qualified military judge. Accused persons who appear before a court martial are entitled to a lawyer free of charge, and the procedures followed are similar to those followed by civilian criminal courts. The available forms of punishment include imprisonment.

[64] There are two types of courts martial:

• Standing Courts Martial "are presided over by a military judge sitting alone" (Military Justice, at. p. 3-3). The judge issues a verdict and, if the accused is found guilty, imposes a sentence.

• General Courts Martial consist of a military judge and a panel of five members of the military. "The panel is responsible for making a finding on the charges" and the judge "is responsible for making legal rulings and imposing [a] sentence" (ibid.). A person accused of an indictable offence under s. 130(1)(a) or certain other specified service offences carrying a maximum sentence of more than two years is tried before a General Court Martial, unless both the prosecutor and the accused consent to a trial before a Standing Court Martial. An accused may elect to be tried by a Standing Court Martial instead of a General Court Martial for certain offences (NDA, s. 165.193(1), (2)).

[65] The General Courts Martial merit particular attention here, given that while the military justice system has never provided for a trial by jury, it has long provided for a trial before a judge and a military panel. Such panels have existed in the United Kingdom for well over a century (see Army Act, 1881 (U.K.)), and have been part of the Canadian military justice system since 1868. While the composition of these panels has changed over the years, they have always consisted of members of the military.

[66] The role of a military panel is unique, bringing to bear upon the proceedings the military-specific concerns for discipline, efficiency, and morale. As Lamer C.J. observed in Généreux, it "represents to an extent the concerns of those persons who are responsible for the discipline and morale of a unit or military formation" (p. 295). Indeed, "what juries are for the civilian system, the panel is for the military system" (Trépanier, at para. 72).

[67] In some respects, a military panel is analogous to a jury, and over the years they have become more and more so. Like a jury, the panel is the trier of fact, while the judge makes rulings on legal questions (see NDA, ss. 191 and 192(1)). Furthermore, as already mentioned, while panels used to decide by majority vote, under the current regime the panel must now reach its verdicts unanimously (NDA, ss. 188.1, 188.2). As well, it is now the judge who is tasked with imposing a sentence in the event of a guilty verdict, not the panel (NDA, s. 203.1(1), (2)).

[68] That said, a military panel is not a jury (see Trépanier, at para. 73, citing R. v. Lunn (1993), 1993 CanLII 8748 (CMAC), 5 C.M.A.R. 157; R. v. Brown (1995), 1995 CanLII 10773 (CMAC), 5 C.M.A.R. 280; and R. v. Nystrom, 2005 CMAC 7). Important differences distinguish one from the other. Most fundamentally, a jury consists of civilians randomly selected from the population at large; a military panel consists of members of the military. As a result, while a jury benefits from the accumulated life experience of a cross-section of the community, a military panel benefits from the accumulated military experience of its members and their integrity rooted in that military experience. Further, unlike a jury, a military panel's deliberations are preceded by a charge by the military judge, in which the judge provides instructions on the relevant law.

[69] The composition of military panels has changed over time. At one point, only officers could sit on a panel (see Dickson Report, at p. 56). However, in 1997, the Dickson Report recommended that non-commissioned members of a certain rank be permitted to serve on military panels, as they "could bring a valuable perspective to a panel" and their inclusion "would increase the confidence of lower rank accused persons in the fairness of military tribunals" (p. 56). Parliament responded favourably, and today non-commissioned members may serve on military panels (NDA, s. 167 to 168).

[70] There are sound reasons why the military justice system has opted for a unique military panel model, rather than a jury model. For example, the concept of "members tried by members" fosters morale within the military. As Professor J. Walker points out, this is so even where the underlying offences are of a civil nature:

Esprit de corps depends on the confidence that one's conduct, alleged to have violated the Code of Service Discipline (even in the commission of an offence also found in the Criminal Code) will be assessed by those whose familiarity with the challenges and circumstances of military life is the product of personal experience and whose sensitivity to the requirements of the Code is derived from an ongoing commitment to uphold it.

("A Farewell Salute to the Military Nexus Doctrine" (1993), 2 N.J.C.L. 366, at p. 372)

[71] Moreover, where a person subject to the CSD commits an act or omission outside Canada that would, if it had taken place in Canada, constitute an offence under Part VII of the NDA, the Criminal Code, or any other federal statute, Canadian service tribunals have jurisdiction to try that offence as a service offence under s. 130(1)(b) of the NDA. Further, pursuant to s. 68 of the NDA, the trial may be held outside Canada. In these circumstances, it would be highly impractical — if not impossible — to cobble together a jury of Canadian civilians and transport them to the place of trial. The military justice system has thus developed an alternative, portable, and efficient solution that can be implemented whenever and wherever needed. This in turn contributes to discipline, efficiency, and morale in the military. While ss. 68 and 130(1)(b) are not before this Court, the fact that Canada's military justice system operates extraterritorially, and that service tribunals may have to be convened on short notice in a different part of the world, help to explain why it has opted for a unique military panel model rather than a jury model.

[72] Having set out the salient aspects of the CSD, we return to the military exception in s. 11(f), and in particular the meaning of the words "an offence under military law" which constitutes this exception.

E. The Meaning of "An Offence Under Military Law" in Section 11(f)

(1) The Context in Which the Words "An Offence Under Military Law" Were Included in Section 11(f)

[73] When the NDA was enacted in 1950, the Minister of National Defence explained his understanding of "military law":

Parts IV to IX [of the NDA] which constitute the code of service discipline, are what is properly called military law. Military law is the law which governs the members of the army and regulates the conduct of officers and soldiers as such, in peace and war, at home and abroad. Its object is to maintain discipline as well as to deal with matters of administration which are of special importance to the army.

(House of Commons, Minutes of Proceedings and Evidence of the Special Committee on Bill 133: An Act Respecting National Defence, No. 1, 2nd Sess., 21st Parl., May 23, 1950, at pp. 11-12)

[74] Thus, "military law" was understood as "the law which governs the members of the army and regulates the conduct of officers and soldiers as such, in peace and war, at home and abroad", and which manifested itself through the service offences set out in the CSD. And, as we have explained, from the time of the NDA's enactment, the CSD contained a provision transforming ordinary civil offences into service offences (s. 119). Thus, from the very beginning of the "modern" Canadian military justice system, "military law" — as defined by those who enacted the NDA — included ordinary civil offences that became service offences pursuant to what is now s. 130(1)(a).

[75] This broad understanding of the type of offences coming under "military law" was echoed by s. 2 of the Criminal Code, R.S.C. 1970, c. C-34, which at the time of the Charter's enactment defined (and still defines) "military law" as including "all laws, regulations or orders relating to the Canadian Forces".[^6] Further, it is supported by the decisions in MacKay and Moriarity.

[76] MacKay cemented several key principles bearing on the interpretive issue now before the Court. Parliament has legislative authority under s. 91(7) of the Constitution Act, 1867, to create services offences under the NDA. Service offences are set out in the CSD, which serves as a disciplinary code for military life. Validly enacted offences in the CSD constitute "military law". The provisions of the NDA governing service offences were validly enacted by Parliament under s. 91(7). These principles establish that Parliament has validly enacted s. 130(1)(a) of the NDA as part of military law.

[77] This leads us to the debates on s. 11(f), during which the Honourable Jean Chrétien, then Minister of Justice, explained that "[j]ury trials in cases under military law before a military tribunal have never existed either under Canadian or American law" (Senate and House of Commons, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, No. 36, 1st Sess., 32nd Parl., January 12, 1981, at p. 59:8). As confirmed in MacKay, at the time these debates took place, s. 130(1)(a) had long been part of the CSD and, hence, part of "military law" in Canada.

[78] In our view, in light of "the historical origins of the concepts enshrined" and "the language chosen to articulate the specific right or freedom" (Big M, at p. 344), it is doubtful that s. 11(f) reversed this longstanding state of affairs. Instead, it is far more likely that the purpose of the military exception was to recognize and preserve this reality.

[79] We agree with Trépanier that the s. 11(f) exception contemplates that there be protection, to the extent possible, equivalent to the civilian jury system. As Bell C.J. stated in Stillman, a military panel serves a similar function to a civilian jury (para. 9). The composition and number of panel members may differ from that of a civilian jury, but what matters is whether it meets the constitutional standard of affording protection equivalent to a jury, to the extent possible.

[80] This was the state of "military law" at the time the military exception was included in s. 11(f) of the Charter. Against this backdrop, we conclude that the purpose of the military exception is to recognize and affirm the existence of a separate military justice system tailored to the unique needs of the military, and to preserve the historical reality that jury trials in cases governed by military law have never existed in Canada.

[81] Taking that purpose as a given, we turn to two competing interpretations of the military exception: one urged by the accused persons and adopted by the majority in Beaudry, and the other endorsed in obiter by the majority in Stillman.

(2) Interpretation #1: "Offence[s] Under Military Law" Are Limited to Those Listed in Sections 73 to 129 of the NDA

[82] Relying on the majority's reasoning in Beaudry, the accused persons maintain that the only "offence[s] under military law" for the purposes of the military exception in s. 11(f) of the Charter are those listed in ss. 73 to 129 of the NDA. They distinguish between "special standards of military discipline"[^7] (to which only persons covered by s. 11(f) are subject) and ordinary civil offences, which they maintain are not "under military law".

[83] Firstly, MacKay makes clear that an ordinary civil offence tried as a service offence under s. 130(1)(a) is no less an offence under "military law" than "purely" military offences in the CSD. That an offence is incorporated by reference (s. 130(1)(a)), rather than by direct enactment (ss. 73 to 129), does not change this. To reason otherwise would be to draw a formalistic distinction between two categories of service offences within the very same Code of Service Discipline, with both validly enacted under s. 91(7) of the Constitution Act, 1867.

[84] Secondly, the accused persons' proposal is not supported by the text of s. 11(f). Had the scope of the military exception been limited to the offences listed in ss. 73 to 129 of the NDA, one would have expected language such as "except for those offences which are exclusively under military jurisdiction" or "except for those offences which have no civilian analogue".

[85] Thirdly, the accused persons' reliance on the Mutiny Act of 1689 is misplaced. The accused persons rightly note that this Act (which has long since been repealed) set out a very narrow exception to the right to a trial by jury, applicable only in respect of sedition, desertion, or mutiny. But military law, and the place of the military in our society, has changed dramatically since 1689.

[86] We underline at this point that we would not foreclose the possibility of challenging certain aspects of the military panel system, particularly in relation to their composition and their independence from the chain of command, under other provisions of the Charter — for example, s. 11(d). But this is a different question than that put before us.

[87] In sum, we are respectfully of the view that the words "an offence under military law" in s. 11(f) cannot be read in the manner proposed by the accused persons.

(3) Interpretation #2: "Offence[s] Under Military Law" Should Be Qualified by a Heightened "Military Nexus" Requirement

[88] An alternative position, endorsed in obiter by the majority in Stillman, is that the words "an offence under military law" in s. 11(f) should be qualified by a heightened "military nexus" requirement going beyond the accused's military status.

[89] By way of background, as Bell C.J. summarized in his concurring reasons in Stillman (see paras. 11-13), the "military nexus" doctrine (also known as the "service-connection" test) was first articulated by the Supreme Court of the United States in O'Callahan v. Parker (1969), 395 U.S. 258, at a time when the United States was in the midst of the Vietnam War and the military was composed of a very large number of conscripted members.

[90] As Bell C.J. also noted, however, the U.S. Supreme Court later overruled O'Callahan and jettisoned the "service-connection" test in Solorio v. United States (1987), 483 U.S. 435. From that point (by which time the Vietnam War had ended, conscription had ended and judicial review of court martial decisions had been supplemented by the availability of federal habeas corpus), military status alone became the test for court martial jurisdiction in the United States.

[91] Before Solorio dealt a death blow to the "service-connection" test in the United States, however, the doctrine had found its way into Canadian jurisprudence. In his concurring reasons in MacKay, McIntyre J. endorsed a form of "military nexus", stating that a civil offence would "[fall] within the jurisdiction of the courts martial and within the concept of 'military law'" if the offence was committed in "circumstances [bearing] a sufficient relation to the military" (p. 398). As Bell C.J. observed in Stillman, these reasons were often cited as authoritative in the years that followed, even though — strictly speaking — they did not form part of the majority reasons in MacKay.

[92] In 2015, however, this Court in Moriarity stemmed this line of jurisprudence by making it clear that the only "military nexus" required to support a rational connection to maintaining discipline, efficiency, and morale in the military is the accused's military status. In that case, four members of the Canadian Armed Forces were charged with various service offences under s. 130(1)(a) of the NDA (sexual assault and related offences against minors). Each argued that s. 130(1)(a) was overbroad under s. 7 of the Charter.

[93] This Court rejected that argument, stating that the purpose of s. 130(1)(a), consistent with the purpose of the military justice system as a whole, is "to maintain the discipline, efficiency and morale of the military" (para. 48). "There is no explicit limitation", the Court observed, "in the text of s. 130(1)(a) to the effect that the offence must be related to military duties or that the accused must have been on duty at the time the offence was committed" (para. 49).

[94] Even this broad scope of application did not translate into overbreadth. The Court found that "[t]he objective of maintaining 'discipline, efficiency and morale' is rationally connected to dealing with criminal actions committed by members of the military even when not occurring in military circumstances" (para. 51). It went on:

Criminal or fraudulent conduct, even when committed in circumstances that are not directly related to military duties, may have an impact on the standard of discipline, efficiency and morale. For instance, the fact that a member of the military has committed an assault in a civil context . . . may call into question that individual's capacity to show appropriate respect to his or her military hierarchy or to exercise authority over subordinates . . . .

Consider, as a further example, an officer who has been involved in drug trafficking. There is a rational connection between the discipline, efficiency and morale of the military and military prosecution for this conduct. There is, at the very least, a risk that loss of respect by subordinates and peers will flow from that criminal activity even if it occurs in a civilian setting . . . .

These examples support a broad understanding of the situations in which criminal conduct by members of the military is at least rationally connected to maintaining the discipline, efficiency and morale of the armed forces: the behaviour of members of the military relates to discipline, efficiency and morale even when they are not on duty, in uniform or on military property.

[95] The Court held that even "where the only military connection is the status of the accused", the full range of conduct covered by s. 130(1)(a) has a rational connection to the maintenance of discipline, efficiency, and morale in the military. Section 130(1)(a) is not overbroad under s. 7 of the Charter.

[96] Against this backdrop, we are of the view that there are compelling reasons why the "military nexus" doctrine should not be resurrected.

[97] Firstly, and most significantly, is the combined effect of MacKay and Moriarity. We acknowledge that compliance with the division of powers and Charter compliance are, generally speaking, two different things (such that one does not necessarily follow from the other (see Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, at paras. 70-71)). However, in this instance, there must be coherence among (i) the division of powers analysis, which confirmed Parliament's power to enact s. 130(1)(a); (ii) the overbreadth analysis under s. 7 of the Charter, which confirmed that s. 130(1)(a) is not overbroad; and (iii) the meaning of "an offence under military law" in s. 11(f) of the Charter.

[98] Secondly, and relatedly, the parties do not contest that the offences listed in ss. 73 to 129 of the NDA, each of which was enacted pursuant to Parliament's power under s. 91(7), are "offence[s] under military law" within the meaning of s. 11(f) of the Charter. In fact, the accused persons argued that these are the only "offence[s] under military law" for the purpose of s. 11(f). Yet a number of the offences listed in ss. 73 to 129 can be committed in the absence of a heightened "military nexus" (e.g., "stealing" under s. 114). If no heightened "military nexus" is required to preserve the status of these offences as "offence[s] under military law", it would be inconsistent to impose such a requirement in relation to offences under s. 130(1)(a).

[99] Thirdly, the imposition of a heightened "military nexus" requirement would risk causing military courts to engage in an unwieldy and unhelpful threshold inquiry that distracts from the merits. As Professor Hogg writes, the rejection of the "military nexus" requirement in Moriarity spares service tribunals from the distraction of having to deal with a "difficult pre-trial issue that has nothing to do with the accused's guilt or innocence" (Hogg, Constitutional Law of Canada, at p. 20-21).

[100] Fourthly, were serious civil offences committed by persons subject to the CSD to be streamed into the civilian justice system, sentencing decisions in those cases might not truly account for the seriousness of such offences, seen in light of the purposes of discipline, efficiency, and morale. As Cattanach J. recognized in MacKay v. Rippon, 1977 CanLII 3028 (FC), [1978] 1 F.C. 233 (T.D.), at p. 242, the sentencing objectives in military law are distinct from those applicable in civilian courts. Indeed, under s. 203.1(1) of the NDA, a military tribunal imposing a sentence must take into account the following objectives:

(a) to promote a habit of obedience to lawful commands and orders;

(b) to maintain public trust in the Canadian Forces as a disciplined armed force;

(c) to denounce unlawful conduct;

(d) to deter offenders and other persons from committing offences;

(e) to assist in rehabilitating offenders;

(f) to assist in reintegrating offenders into military service;

(g) to separate offenders, if necessary, from other officers or non-commissioned members or from society generally;

(h) to provide reparations for harm done to victims or to the community; and

(i) to promote a sense of responsibility in offenders, and an acknowledgment of the harm done to victims and to the community.

[101] While some of these objectives are reflected in s. 718 of the Criminal Code (e.g., rehabilitating offenders), others are not (e.g., promoting a habit of obedience to lawful commands and orders). Thus, sentencing in the military justice system is guided by certain objectives that are unique to the military milieu. Extracting serious civil offences from the military justice system and streaming them into the civilian justice system would risk losing sight of these unique objectives.

[102] Fifthly, while military prosecutors may engage in an inquiry that resembles a "military nexus" test when assessing whether to exercise jurisdiction in a particular case, the existence of jurisdiction must be separated from the exercise of jurisdiction. The Director of Military Prosecutions has issued a policy directive on the factors to be considered in determining whether to exercise jurisdiction in a given case (see Directive No. 002/99, "Pre-Charge Screening", 2000 (online)). These factors include:

a. the degree of military interest in the case, as reflected by factors such as the place where the offence was alleged to occur, or whether the accused was on duty at the time of the alleged offence;

b. the degree of civilian community interest in the case;

c. the views of the victim;

d. whether the accused, the victim, or both are members of the CAF;

e. whether the matter was investigated by military or civilian personnel;

f. the views of the investigative agency;

g. geographic considerations such as the current location of necessary witnesses;

h. jurisdictional considerations where, for example, the offence was allegedly committed abroad;

i. post-conviction consequences; and

j. the views of the Commanding Officer, as expressed through the unit legal advisor, with respect to unit disciplinary interests. [Footnote omitted.]

[103] Thus, based on case-specific factors, military prosecutors may decide that it would be more appropriate to stream a particular case into the civilian criminal justice system. Yet the distinction between the existence of jurisdiction and the exercise of jurisdiction is an important one. While military prosecutors may decline to exercise jurisdiction over a given case, the question before this Court is whether the military justice system has the jurisdiction to hear such a case. That jurisdictional question must be answered independently of how prosecutorial discretion is in fact exercised.

[104] We are fortified in our conclusion by practical considerations, some of which were discussed in R. v. Ryan, 2018 CM 2033. Imposing a heightened "military nexus" requirement would go against the objective of responding swiftly to misconduct within the military and thereby enhancing discipline, efficiency, and morale in the military. As indicated in the Office of the Auditor General of Canada, 2018 Spring Reports of the Auditor General of Canada to the Parliament of Canada: Report 3 — Administration of Justice in the Canadian Armed Forces (2018) (the "Auditor General's Report"), the military justice system has generally processed cases more efficiently and quickly than civilian criminal courts. An additional jurisdictional threshold would result in added delays and increased uncertainty in the military justice system. Given these practical concerns, it may not be surprising that, in practice, military prosecutors refrain from proceeding in the military justice system where the connection between the offence and the military is tenuous.

[105] As for the "military connection test" proposed by our colleagues Karakatsanis and Rowe JJ., we are troubled by our colleagues' approach for several reasons. Firstly, they encourage military courts faced with a jurisdictional challenge to ask: "Has a service member committed an offence in circumstances that are so connected to the military that it would have a direct effect on military discipline, efficiency and morale?" Yet the ambiguity of this inquiry is evident. Determining what constitutes a "direct effect" on military discipline, efficiency, and morale is not straightforward.

[106] Secondly, our colleagues suggest that where an offence was committed "in the course of military duty, on military property, or using military property . . . it can generally be inferred that there will be a direct effect on military discipline, efficiency and morale" (para. 178 (emphasis added)). Yet our colleagues fail to explain when, if ever, there would be a military connection absent these factors. Under their test, an offence committed by a soldier off-duty at home would appear not to be connected to the military at all — a result at odds with the principle articulated in Moriarity that criminal behaviour by a member of the military always has a rational connection to the maintenance of discipline, efficiency, and morale.

[107] Thirdly, our colleagues maintain that "[t]he fact that an offence was committed by a service member, on its own, is unlikely to be sufficient to ground a military connection on the basis that its mere commission undermines discipline" (para. 178). Respectfully, their position is incompatible with Moriarity, which adopted a broad understanding of when criminal behaviour by a member of the military is "at least rationally connected to maintaining the discipline, efficiency and morale of the armed forces" (para. 51).

[108] Fourthly, we question our colleagues' proposed remedy, which is to read the following language into s. 130(1)(a) where an accused is charged with an offence carrying a maximum punishment of at least five years' imprisonment: "An act or omission committed by a service member that is military in nature or is committed in circumstances directly connected to the military". We fail to see how this reading in would give greater effect to the purpose of the right to a jury trial as described in Turpin. Our colleagues' remedy appears to turn on the circumstances in which the offence is committed, without explaining how those circumstances would bear on the right to a jury trial per se.

[109] In sum, we see no basis for resurrecting the "military nexus" doctrine. And, in any event, this Court has spoken: Moriarity identified the "military nexus" required to ground a rational connection to discipline, efficiency, and morale in the military — the accused's military status. Nothing more is needed. We turn, therefore, to our own conclusion on the proper meaning of "an offence under military law" in s. 11(f) of the Charter.

(4) "An Offence Under Military Law" Is One That Is Validly Enacted Under Section 91(7) of the Constitution Act, 1867

[110] In our view, the text "an offence under military law" in s. 11(f) refers to an offence that is validly enacted pursuant to Parliament's power over the "Militia, Military and Naval Service, and Defence" under s. 91(7) of the Constitution Act, 1867. This interpretation aligns with the analysis of Strayer C.J. in R. v. Reddick (1996), 1996 CanLII 17940 (CMAC), 112 C.C.C. (3d) 491, who wrote:

As to the application of the exemption for military tribunals from the Charter requirements of trial by jury, this really involves statutory interpretation or division of powers issues as to whether the offence in question is truly "an offence under military law" in the words of paragraph 11(f) of the Charter. Is the offence in question in its essential nature "military law" falling within the competence of Parliament under subsection 91(7) of the Constitution Act, 1867? (p. 504)

[111] The accused persons and the majority in Stillman raised concerns over the notion that Parliament might have a hand in shaping what constitutes "an offence under military law" — and, consequently, influence the application of the military exception in s. 11(f) — through the exercise of its legislative authority under s. 91(7) of the Constitution Act, 1867. This would, it is argued, offend the principle that it is the courts, not Parliament, that determine the scope of Charter protections.

[112] To be clear, we reject our colleagues' characterization of our approach as permitting Parliament to "define the scope of [a] Charter right" through ordinary legislation (para. 121). That is not our suggestion. Rather, our approach simply recognizes that the content of certain pre-existing concepts enshrined in the Charter — in this case, "an offence under military law" — carries with it a body of existing law. When the Charter used those words, it did so against the backdrop of Parliament having validly enacted the CSD, including s. 130(1)(a). We are therefore simply giving effect to that prior state of the law.

[113] Our conclusion can be stated succinctly. Our jurisprudence establishes that Parliament has validly enacted s. 130(1)(a) of the NDA under the authority granted by s. 91(7) of the Constitution Act, 1867 (see MacKay, at p. 397). It also establishes that s. 130(1)(a) is not overbroad under s. 7 of the Charter, even absent a "military nexus" beyond the accused's military status (Moriarity, at para. 51). It follows, therefore, that a serious civil offence tried as a service offence under s. 130(1)(a) qualifies as "an offence under military law" for the purposes of s. 11(f) of the Charter. Accordingly, it is not inconsistent with s. 11(f) of the Charter.

VI. Conclusion

[114] We would dismiss the appeals in Stillman and allow the appeal in Beaudry. The order of the CMAC in Beaudry declaring s. 130(1)(a) of the NDA to be of no force or effect in its application to any serious civil offence is set aside, and the conviction is restored. As requested, the parties will bear their own costs.

Joint Dissenting Reasons

(paras. 115 to 195)

Karakatsanis and Rowe JJ. —

I. Introduction

[115] Section 11(f) of the Canadian Charter of Rights and Freedoms guarantees every accused charged with an offence punishable by five years of imprisonment (or a more severe punishment) the fundamental and historic right to a jury trial. It carves out an exception to this right in "the case of an offence under military law tried before a military tribunal" (in French, "sauf s'il s'agit d'une infraction relevant de la justice militaire"). The question is what falls within that exception.

[116] The scope of the military exception is at issue in these appeals. Specifically, we have been asked whether s. 130(1)(a) of the National Defence Act, R.S.C. 1985, c. N-5, violates s. 11(f) of the Charter. To answer this question, we must determine whether s. 130(1)(a) creates "an offence under military law tried before a military tribunal" for the purposes of the exception in s. 11(f).

[117] This Court has addressed the constitutionality of this provision by reference to s. 91(7) of the Constitution Act, 1867, and s. 11(d) of the Charter (Majority Reasons, at para. 4; see, in particular MacKay v. The Queen, 1980 CanLII 217 (SCC), [1980] 2 S.C.R. 370, and R. v. Généreux, 1992 CanLII 117 (SCC), [1992] 1 S.C.R. 259). Most recently, in R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, the constitutionality of this provision was considered under s. 7 of the Charter. A challenge to s. 130(1)(a) based on s. 11(f) has not previously been squarely before this Court.

[118] Our colleagues state that as long as s. 130(1)(a) is within the federal government's legislative competence and not overbroad under s. 7 of the Charter, the offences incorporated by s. 130(1)(a) need not be committed in circumstances directly connected to the military for s. 130(1)(a) to be constitutional. In our view, finding a provision within the scope of Parliament's legislative competence does not automatically render that provision Charter compliant. Charter rights exist to protect individuals from the state, even when that state is acting within its legislative competence. We disagree with the majority's approach.

[119] The question now before this Court is whether s. 130(1)(a) of the NDA infringes s. 11(f) of the Charter. The majority concludes that s. 130(1)(a) does not infringe s. 11(f), as s. 130(1)(a) falls within the exception in s. 11(f). We disagree. In our view, s. 130(1)(a) only falls within the scope of the exception to the extent that there is a direct connection between the circumstances of the offence and the military.

[120] We part company with the majority in three fundamental respects. First, while the majority sets out a purposive approach to the Charter right and exception, they do not give sufficient effect to either the individual or societal interest in the right to a jury trial. We cannot agree that a trial before a military panel "largely mirrors the civilian justice system" or that a military panel "serves a similar function to a civilian jury". The broader society does not participate in military panels, and this alone is enough to say that a military panel does not mirror the civilian justice system with respect to the right to a jury trial.

[121] Second, it is the role of the courts to interpret the words expressing the military exception in s. 11(f) to define the range of offences that Parliament can exclude from the right to a trial by jury. The majority says that as long as Parliament is acting under its constitutional authority in relation to military law, and has not enacted overbroad legislation under s. 7, then it has "defined" an "offence under military law". In so saying, it is allowing Parliament to determine the scope of the military exception in s. 11(f) of the Charter. The exception should not be read so broadly that Parliament can, through ordinary legislation, expand its reach to erode the right to a jury trial for serious criminal offences.

[122] Third, military court jurisdiction has historically been subject to important limits. Initially, the types of offences that could be tried by military courts were limited to offences that were specific to the military, such as desertion, mutiny and sedition. As the jurisdiction of military courts expanded to include civilian offences, civilian courts maintained primary jurisdiction where offences were triable in either court. Courts developed the military connection test to determine when it was appropriate to depart from the primacy of civilian court jurisdiction.

[123] We join the majority in rejecting the position put forward by the accused persons that the only offences under military law considered for the purposes of s. 11(f) of the Charter are those military offences enumerated in ss. 73 to 129 of the NDA.

[124] However, we conclude, based on the nature and purpose, language, and history of the jury trial right and its exception, that s. 130(1)(a) of the NDA does not comply with s. 11(f) of the Charter to the extent that it denies service members the right to a jury trial for serious offences that do not have a military connection. Because striking down the legislative provision would go further than the Charter breach requires and prevent the trial of all offences by military courts designated in s. 130(1)(a), a military connection requirement should be read into s. 130(1)(a) to respect s. 11(f) of the Charter.

II. The Right to a Jury Trial and Its Exception

[125] Section 11(f) reads: "Any person charged with an offence has the right . . . except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment". This Charter provision guarantees the fundamental right to a jury trial, while carving out an exception for an offence under military law tried before a military tribunal.

[126] The meaning of a Charter right is to be understood by analyzing the purpose of the guarantee and the interests it is meant to protect. The purpose of the right is ascertained by reference to the character and larger objectives of the Charter, the language of the right, the historical origins of the concepts enshrined, and where applicable, the meaning and purpose of the other specific rights with which it is associated within the text of the Charter. Guided by these principles, the interpretation of the right should be "a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection" (R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at pp. 344-45). We may not, however, go so far as to overshoot the purpose of the right.

[127] Exceptions "should not be construed more widely than is necessary to fulfil the values which support [them]" (Air Canada v. British Columbia, 1989 CanLII 95 (SCC), [1989] 1 S.C.R. 1161, at p. 1207, per La Forest J.). R. Sullivan has expanded on this point: "In keeping with the current emphasis on purposive analysis, modern courts are particularly sensitive to the danger of misusing exceptions, both as a means of encroaching on the rights of citizens and as a means of undermining the protective legislation in which they appear" (Sullivan on the Construction of Statutes, 6th ed. (2014), at pp. 218-19).

[128] With regard to the specific question before us, we agree with Professor A. Morel, who describes how this interpretive approach directs the court to read the words of the military exception narrowly:

One must not lose sight of the fact that we are in the presence of an exception to a provision which, in other respects, guarantees any accused the right to the benefit of trial by jury. This provision is itself part of a Charter whose first section "guarantees the rights and freedoms set out in it". It is sufficient to say that the exception must be interpreted strictly and that it is only in the case of "an offence under military law tried before a military tribunal" that the right to trial by jury may be denied.

("Certain Guarantees of Criminal Procedure" in W. S. Tarnopolsky and G.-A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms: Commentary (1982), 367, at p. 376)

[129] In our view, the purpose of the military exception in s. 11(f) cannot be divorced from the purpose of the right to a jury trial. In Turpin, this Court interpreted the word "benefit" in s. 11(f) in a "broad and generous manner . . . to ensure that those protected receive the full benefit of the protection" (p. 1314). Similarly, we take into account both the individual and societal purposes of the jury trial right in determining whether a military connection test is required.

A. The Nature and Purpose of Section 11(f)

(1) Section 11(f) in the Context of the Charter

[130] We begin by situating s. 11(f) in the Charter. We explain the nature and purpose of s. 11(f), including how s. 11(f) differs from s. 7.

[131] The nature of the protection in s. 11(f) can be discerned by reference to other Charter provisions. Sections 7 to 14 of the Charter enshrine fundamental legal rights. Section 7 broadly protects the fundamental rights of "[e]veryone" to "life, liberty and security of the person". Those rights are balanced by the requirement that any deprivation of those rights be "in accordance with the principles of fundamental justice." Sections 8 to 14 are specific enumerations of legal rights. Section 11 lists nine fundamental rights in paras. (a) to (i) that are granted to "[a]ny person charged with an offence". The more general purpose of s. 11 is to protect the liberty and security interests of persons accused of crime in the circumstances stated in each paragraph (R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594, at p. 1609).

[132] As noted by Lamer J. (as he then was), ss. 8 to 14 "address specific deprivations of the 'right' to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7" (Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 502). These sections draw attention to specific types of state action that are particularly threatening to liberty and security. As was stated in R. v. CIP Inc., 1992 CanLII 95 (SCC), [1992] 1 S.C.R. 843, the guarantees in ss. 8 to 14 "may in some cases offer a narrower protection than s. 7 when the specific right is itself so confined, but in other cases they may offer a broader protection when those rights go beyond the general protection offered by s. 7" (p. 843 (headnote)).

[133] The purpose of s. 11(f) is to protect the right to a jury trial. Section 11(f) is, in effect, an illustration of a fundamental right to life, liberty and security of the person guaranteed in s. 7. Section 11(f) also offers a specific protection that s. 7 does not. In R. v. CIP Inc., 1992 CanLII 95 (SCC), [1992] 1 S.C.R. 843, the Court noted that where "the s. 11 right offers greater protection than s. 7", we are bound to give effect to both. Section 11(f) specifically protects the right to a jury trial. This protection goes beyond s. 7's requirement of fundamental justice, providing a specific guarantee to accused persons: the right to trial by jury.

[134] Thus, the finding in Moriarity that s. 130(1)(a) of the NDA did not violate s. 7 for overbreadth does not answer the question of whether the provision violates s. 11(f), in part because of the different protections offered by the two Charter provisions. A provision may pass constitutional muster under the overbreadth prong of s. 7, but nonetheless be unconstitutional under s. 11(f) because:

The overbreadth analysis does not evaluate the appropriateness of the objective. Rather, it assumes a legislative objective that is appropriate and lawful. I underline this point here because the question of the scope of Parliament's authority to legislate in relation to "Militia, Military and Naval Service, and Defence" under s. 91(7) of the Constitution Act, 1867 is a division of powers question, not an s. 11(f) question.

[135] With a challenge based on s. 11(f) now squarely before us, we turn to determining the nature and scope of s. 11(f) to address whether s. 130(1)(a) of the NDA violates it.

(2) Individual and Community Interests in Jury Trials

[136] Section 11(f) protects both an individual and societal interest in trials by jury. In Turpin, this Court described s. 11(f) as granting individuals charged with an offence the right to the benefit of a trial by jury. The Court stated that s. 11(f) is concerned both with protecting the interests of the accused and placing corresponding obligations on the state. As recognized in that case, the jury serves collective purposes as well:

. . . trial by jury interests large numbers of people in the administration of justice and makes them responsible for it. It is difficult to over-estimate the importance of this. It gives a degree of power and of popularity to the administration of justice which could hardly be derived from any other source.

(J. Stephen, A History of the Criminal Law of England (1883), vol. I, at p. 573, cited at p. 1310 of Turpin.)

[137] The collective dimension of the right to a jury trial has been important both historically and more recently in Canada. Historically, the local community's interest in adjudicating alleged crimes committed against it and the importance of a public example were considered key parts of the criminal jury trial right. W. Blackstone, in his Commentaries, described the community interest in the trial of crime:

[A]lthough a private citizen may dispense with satisfaction for his private injury, he cannot remove the necessity of public example. The right of punishing belongs not to any one individual in particular, but to the society in general, or the sovereign who represents that society: and a man may renounce his own portion of this right, but he cannot give away the right of others.

[138] This collective interest in the jury trial continues to be recognized today. Indeed, a crime is understood to be a wrong against society; hence, it is the state that prosecutes. As noted in R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, the community has a stake in the prosecution of serious criminal offences:

The jury, through its collective decision making, is an excellent fact finder; due to its representative character, it acts as the conscience of the community; the jury can act as the final bulwark against oppressive laws or their enforcement; it provides a means whereby the public increases its knowledge of the criminal justice system and it increases, through the community's involvement, the accessibility and quality of justice. (p. 523)

[139] Both the collective and individual aspects of the jury trial right are important, and we must give effect to both aspects of the right. The accused persons in this case seek to exercise the right to the benefit of a jury trial. The community also has an interest in participating in the prosecution of serious offences.

[140] Indeed, it is critical in this analysis to determine how military jurisdiction over offences not sufficiently related to the military impacts society. Trying an offence in the military justice system deprives the community of the chance to participate in the prosecution of serious criminal offences. While appropriate in some cases, serious offences with no military connection should not be removed from the community's purview.

(3) Conclusion Regarding the Nature and Purpose of Section 11(f)

[141] Section 11(f) encompasses the interests of the accused and of society in holding a jury trial when prosecuting serious criminal offences. To give effect to this purpose, while respecting the limit imposed by the military exception, we next turn to interpreting the proper scope of the exception.

B. Scope of the Exception Based on the Language of Section 11(f) and the Role of the Courts

[142] The exception to the Charter right to a jury trial is described in the following terms: "except in the case of an offence under military law before a military tribunal". The French version reads: "sauf s'il s'agit d'une infraction relevant de la justice militaire".

[143] As the English version of the provision makes clear, the exception is defined by two aspects: the offence must be (1) an offence under military law, and (2) tried before a military tribunal. As Morel states, "[b]y referring instead to 'an offence under military law tried before a military tribunal', the text adds a qualification which could not be entirely overlooked" (p. 376).

[144] The French wording of the exception ("sauf s'il s'agit d'une infraction relevant de la justice militaire") can be read harmoniously with the English version. Read in light of the English version, the French version encompasses both the forum ("military tribunal") and the substantive law ("military law"). In other words, "justice militaire" in the French version captures both aspects of the exception in the English version.

[145] The Crown argues that "offence under military law" is defined by Parliament, and that the limits on military jurisdiction are best understood as a "triangle" — that is, military jurisdiction is bounded by (1) overbreadth under s. 7 of the Charter and (2) Parliament's legislative competence under s. 91(7) of the Constitution Act, 1867, to legislate on "Militia, Military and Naval Service, and Defence". We disagree for three reasons.

[146] First, there are ways in which s. 130(1)(a) could be unconstitutional apart from overbreadth under s. 7. Section 130(1)(a) could infringe s. 7 in another way, such as if the effects of the provision were grossly disproportionate to its goals. Further, the provision could be unconstitutional under another Charter provision.

[147] Second, Parliament's legislative competence to enact under a certain head of power does not preclude those enactments from review by courts for Charter compliance. The division of powers in the Constitution Act, 1867, gives the federal and provincial legislatures authority to enact laws under the different heads of power. The Constitution Act, 1982, makes the Charter applicable to all of these legislative enactments. Parliament is not free to violate the Charter simply because it is acting within its legislative competence.

[148] Courts are empowered to determine whether a law enacted by the legislature in accordance with the Constitution Act, 1867, also conforms to the requirements of the Constitution Act, 1982. As Dickson J. (as he then was) stated, "it is the high duty of this Court to insure that the Legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power" (Amax Potash Ltd. v. Government of Saskatchewan, 1976 CanLII 15 (SCC), [1977] 2 S.C.R. 576, at p. 590; see also Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, at paras. 19-20).

[149] The judiciary's role in relation to the legislature is important in the context of the military court system: "Undue deference by the courts to the military leads the judiciary to abstain from its proper role of constitutional oversight over all organs of government" (P. T. Collins, "The Civil Courts' Challenge to Military Justice and its Impact on the Civil-Military Relationship", in A. Duxbury and M. Groves, eds., Military Justice in the Modern Age (2016), 57, at p. 77).

[150] Having considered the scope of the exception and the role of the courts in determining that scope, we next interpret the exception by reference to the history of military jurisdiction.

C. The History of Military Jurisdiction

[151] A separate system of military courts has existed since 1689; there is no dispute that a separate system is required (Généreux, at p. 293). However, the history of military courts' jurisdiction demonstrates that their jurisdiction has always been limited. Under An Act for punishing Officers or Soldiers who shall Mutiny or Desert Their Majestyes Service (Eng.), 1689, 1 Will. 3 & Mar. 2, c. 5, military courts could only try soldiers for mutiny, sedition and desertion — offences specific to the military. Over time, the types of offences that could be tried by military courts expanded. However, as jurisdiction expanded, limits on that jurisdiction also developed.

[152] Thus, recognizing the limits on military court jurisdiction is essential to understanding the proper scope of military jurisdiction and the legal context when s. 11(f) was drafted and enacted.

[153] The majority emphasizes that the military justice system has evolved in recent decades, in particular by strengthening the independence and impartiality of military panels (paras. 44-51). Yet, the majority also acknowledges that s. 11(d), which guarantees the right to an independent and impartial trial, is not at issue before us. Nor is the question of whether the Dickson Report recommendations have been fully implemented. While the majority suggests that the parallels between the current military panel system and a jury trial are significant, the key point for the purposes of s. 11(f) is whether the societal interests in jury trials are addressed by the military panel system. They are not, because the broader community cannot participate in military panels.

(1) Limits on the Types of Offences Triable by Military Courts and the Primacy of Civilian Courts

[154] In 1689, the English Parliament enacted the Mutiny Act. The Mutiny Act attempted to counter the threat to loyalty of soldiers upset with the ascension of a new king and queen to the throne. The Mutiny Act allowed military courts to try and sentence to death officers or soldiers who had committed mutiny, sedition or desertion during peacetime. These were offences specific to the military. The limits on military jurisdiction in 1689 are described by William Blackstone as follows: The standing army must "conform to their temporary master's will", but when a soldier commits offences unrelated to military duties, "they are subject to the civil jurisdiction, for that cannot be excluded, whenever civil affairs come within the cognizance of the court" (W. Blackstone, Commentaries on the Law of England, Book 4 (1765), at p. 415). Or, as expressed by Grant v. Gould (1792), 2 H. Bl. 69, 126 E.R. 434, at p. 444: "there is no instance where a court of common law has been restrained from trying a soldier for a common law offence".

[155] Two centuries later, in 1879, jurisdiction of military law expanded to include criminal offences punishable by ordinary law, with the merging of the Articles of War and the Mutiny Act. At this time, civilian criminal offences became triable by courts martial (S. T. Pitzul and J. C. Maguire, "A Perspective on Canada's Code of Service Discipline" (2002), 52 A.F.L. Rev. 1, at pp. 5-6). However, as military courts' jurisdiction expanded to include civilian offences, civilian courts maintained primary jurisdiction over civilian offences. Military courts had jurisdiction when civilian courts were unavailable, and military courts could be asked to exercise their jurisdiction even where civilian courts were available, subject to those civilian courts' views on the appropriateness of military jurisdiction.

[156] This was the legislative framework that Canada inherited at the time of Confederation in 1867, when the British North America Act "gave the new Dominion of Canada responsibility for defence and maintenance of its own military forces during peacetime" (C. Madsen, Another Kind of Justice: Canadian Military Law from Confederation to Somalia (1999), at p. 8).

[157] From 1868 to the early 1900s, the historical evidence relates mostly to military court trials of offences committed during active service, such as desertion and absence without leave, or minor infractions against service discipline, such as "insubordination [and] negligent performance of duties" (Madsen, at p. 23). There is some indication, however, that civilian offences committed by soldiers in peacetime were also tried by military courts during this period, particularly where civilian courts did not prosecute.

[158] In 1950, the NDA was enacted to consolidate legislation relating to the armed forces into one statute. The NDA retained the incorporation of civilian offences in s. 119(1)(a) (now s. 130). During the consideration of the NDA, Brooke Claxton, then Minister of National Defence, was asked about the potential for overly broad jurisdiction of military courts over civilian offences:

Service courts have no exclusive jurisdiction in respect of civil offences. In fact, they do not try civil offences where the civil courts try civil offences, because if a civil offence is tried by a civil court then the service court has not jurisdiction. . . .

The reason, therefore, for providing that a number of civil offences shall also be service offences is to take care of the case where the civil court does not act or cannot act . . . .

The reasons for that, I think, are threefold. In the first place, in the event of war, service personnel may be serving overseas where no civil court is set up. . . . In the second place, even in peacetime service establishments are set up at places where there are no organized civil courts, and if a man commits an act of assault against a fellow soldier in such circumstances, there must be some tribunal to try him. In the third place, there are certain conditions in civil courts which make it desirable to permit service courts to take jurisdiction in certain cases, and that is where the civilian is already tried by the civil courts for the same offence or a combination of offences.

[159] Claxton's comments illustrate that, at the time of the enactment of s. 130's predecessor, trying service members for civilian offences was meant to be limited to situations where it was necessary for efficiency concerns or desirable because there was a sufficient military connection such that civilian courts preferred to defer to military jurisdiction.

(2) Development of a Military Connection Requirement

[160] In the decades following the enactment of the NDA, courts developed the military connection test to determine when it was appropriate to depart from the primacy of civilian court jurisdiction.

[161] The military connection test was first articulated in Canada in the 1980 case MacKay. In a widely-cited concurrence, McIntyre J. held, and Dickson J. agreed, that if courts martial were to try service members in Canada for criminal offences otherwise triable by civilian courts, the commission and nature of those offences must be connected to the military. He stated:

The serviceman charged with a criminal offence is deprived of the benefit of a preliminary hearing or the right to a jury trial. He is subject to a military code which differs in some particulars from the civil law. . . . While such differences may be acceptable on the basis of military need in some cases, they cannot be permitted universal effect regardless of the circumstances. . . .

The question then arises: how is a line to be drawn separating the service-related or military offence from the offence which has no necessary connection with the service? In my view, an offence which would be an offence at civil law, when committed by a civilian, is as well an offence falling within the jurisdiction of the courts martial and within the concept of "military law" in s. 11(f) if such offence, seen in its circumstances, bears a sufficient relation to the military. (p. 398)

[162] Justice McIntyre's concurrence had a significant impact on subsequent jurisprudence. As noted by R. A. Macdonald:

Despite this seemingly strong support by the majority, the decision that was to have a greater future impact was the concurring opinion of Justice (later Chief Justice) Dickson and Justice McIntyre. . . .

. . . The McIntyre formula with respect to the jurisdiction of military tribunals over offences was the one most frequently cited by the lower courts in the years to follow.

(Canada's Military Lawyers (2002), at p. 120)

Indeed, in 1982, Professor Hogg agreed that s. 130(1)(a) needed to be read down in light of McIntyre J.'s reasons (Hogg, Canada Act 1982 Annotated (1982), at p. 42, cited in Larouche, at para. 53).

[163] This was the background against which the Charter was drafted and enacted. The Charter protected and entrenched a number of rights, including the right to a jury trial. Then Attorney General Jean Chrétien referred to the exception in s. 11(f) in a Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada (Minutes, at p. 59:8) and described the military exception as applying to offences under military law tried before military tribunals. Against the backdrop of the military connection test developed in the pre-Charter era, the s. 11(f) exception should be understood in light of the military connection test, as it was understood at the time the Charter was enacted.

[164] The military nexus test was adopted by the Court Martial Appeal Court in R. v. MacDonald (1983), 1983 CanLII 3128 (CMAC), 4 C.M.A.R. 277, one year after the Charter, and has been applied with some regularity over the past thirty years to determine whether military courts have jurisdiction to try a civilian offence under s. 130(1)(a). See also R. v. MacEachern (1985), 1985 CanLII 3494 (CMAC), 4 C.M.A.R. 447; Ionson v. The Queen (1987), 1987 CanLII 8888 (CMAC), 4 C.M.A.R. 433; Ryan v. The Queen (1987), 1987 CanLII 8897 (CMAC), 4 C.M.A.R. 563; R. v. Brown (1995), 1995 CanLII 10773 (CMAC), 5 C.M.A.R. 280.

(3) Conclusions Drawn From the Historical Evidence

[165] The historical background to s. 11(f) illustrates that there have consistently been limits on military jurisdiction. While we agree with the majority that the exception to the right was included to affirm a separate military system and to preserve the tradition that military law has never had jury trials (Majority Reasons, at para. 80), the history also shows that the exception has always been understood to apply to offences that are military in nature or have a military connection.

[166] This historical overview also highlights when military courts should have jurisdiction. The historical evidence points to the fact that it was appropriate for offences to be heard by military courts rather than civilian courts where quick and efficient justice was necessary to uphold discipline, such as when offences were committed during wartime or abroad. As the jurisdiction of military courts expanded, courts developed the military connection test to ensure that military courts only exercised jurisdiction where the circumstances of the offence had a sufficient connection to the military.

III. Defining the Military Connection Test

A. Background on the Military Connection Test

[167] The military connection test articulated by McIntyre J. in MacKay asked: Has a service member committed an offence connected to the military, having regard to the nature of the offence, the circumstances of its commission and whether the offence would tend to affect military discipline and efficiency? As McIntyre J. stated:

The question then arises: how is a line to be drawn separating the service-related or military offence from the offence which has no necessary connection with the service? In my view, an offence which would be an offence at civil law, when committed by a civilian, is as well an offence falling within the jurisdiction of the courts martial and within the concept of "military law" in s. 11(f) if such offence, seen in its circumstances, bears a sufficient relation to the military. (p. 398)

[168] McIntyre J. observed that a similar approach had been taken in the American context, developed in O'Callahan v. Parker (1969), 395 U.S. 258, and refined in Relford v. Commandant (1971), 401 U.S. 355, at p. 356, fn. 1. Relford directed courts to consider twelve factors in determining whether a particular offence by a service member was "service-connected". This test was concerned with both the nature of the offence and the circumstances in which it was committed.

[169] Canadian courts martial have regularly applied the military connection test since MacKay. For example, in R. v. Catudal (1985), 1985 CanLII 3584 (CACM), 4 C.M.A.R. 338, the Court Martial Appeal Court found that one charge of arson among several arson charges against Mr. Catudal had no military connection because it had been committed in civilian circumstances. In contrast, the other charges of arson had a sufficient military connection because they had been committed in military circumstances. The military connection test as applied in Catudal focused on whether there was a sufficiently direct connection between the offence and the military.

[170] The Crown argues — and the majority accepts — that Moriarity foreclosed the possibility of the military connection test (paras. 92-95). We do not agree. As described earlier, Moriarity involved a challenge to s. 130(1)(a) based on s. 7 of the Charter. This Court held that s. 130(1)(a) was not overbroad because it was rationally connected to Parliament's objective of maintaining discipline, efficiency and morale. The question of whether s. 130(1)(a) violated s. 11(f) was not before the Court. Moriarity stands for the proposition that s. 130(1)(a) is not overbroad under s. 7, but it does not stand for the proposition that s. 130(1)(a) does not violate s. 11(f).

[171] Finally, the majority notes that the military connection test has been abandoned in the U.S. and has no place in the Canadian legal context (Majority Reasons, at para. 99). While the U.S. Supreme Court, in a split decision, left behind the "service-connection" test, the test continues to be applied in Canada in practice. The Director of Military Prosecutions uses factors related to the military connection of an offence in deciding whether to proceed with charges in the military justice system or the civilian justice system. Further, the logic of the dissent in Solorio is apt here.

[172] Determining whether there is a military connection may involve careful consideration and difficult judgment calls, but we agree with the dissenting judges of the U.S. Supreme Court in Solorio v. United States (1987), 483 U.S. 435, at p. 466, who reinforced the need for this exercise:

It should not be surprising that such determinations may at times be difficult or time consuming or require the drawing of narrow distinctions. The trial of any person before a court-martial encompasses a deliberate decision to withhold procedural protections guaranteed by the Constitution. Denial of these protections is a very serious matter . . .

[173] Moreover, if there is a difficult determination to be made about whether there is a military connection, courts are better placed to make such determinations rather than leaving it to the discretion of the prosecutor. As stated in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, we cannot be certain that discretion will always be exercised properly. The constitutionality of a legislative provision cannot depend on the assumption that discretion will be properly exercised.

[174] Should a Charter right be left to the discretion of the prosecution or should it be determined, in the end, by the courts? The answer must be the latter. The military wishes to retain its discretion and, thereby, to deny to some accused who are members of the armed forces the proper exercise of their rights. The response to this needs to be a clear statement that if jurisdiction is asserted by the military, the courts will examine whether it is justified.

[175] Furthermore, given that the DMP currently uses a test similar to the military connection test to determine whether a case should proceed in the military justice system, requiring a military connection test as part of a s. 11(f) analysis is unlikely to significantly affect the number of cases heard by civilian courts, such that it would result in undue backlogs in those courts.

[176] For these reasons, we conclude that s. 130(1)(a) of the NDA infringes s. 11(f) of the Charter to the extent that it deprives an accused of the right to trial by jury for serious offences where there is no military connection. We reach this conclusion based on a purposive interpretation of the Charter provision: by looking to the purpose of the right in s. 11(f) and not construing the exception so broadly as to unduly erode the right.

B. Guidance on the Military Connection Test

[177] Where an accused is charged with an offence that falls under s. 130(1)(a) of the NDA and the accused challenges the military court's jurisdiction on the basis that it would deny their right to a jury trial guaranteed in s. 11(f), the court should ask whether there is a military connection. Has a service member committed an offence in circumstances that are so connected to the military that it would have a direct effect on military discipline, efficiency and morale?

[178] Circumstances sufficiently connected to the military include when an offence is committed in the course of military duty, on military property, or using military property. If an offence is committed in such circumstances, it can generally be inferred that there will be a direct effect on military discipline, efficiency and morale. If the offence is committed in circumstances other than those described above, the prosecution may point to other circumstances that would establish that the commission of the offence in those circumstances has a direct impact on military efficiency, discipline and morale. The fact that an offence was committed by a service member, on its own, is unlikely to be sufficient to ground a military connection on the basis that its mere commission undermines discipline. There must be something more.

[179] When an offence is committed in a theatre of war, it is presumed that the circumstances will meet the military connection test, as the circumstances require justice to be promptly rendered and civilian courts are unlikely to be available. Offences committed abroad, meanwhile, are dealt with under s. 130(1)(b) of the NDA,[^8] as military extraterritorial jurisdiction is not in dispute.

[180] It should be noted that while s. 130 incorporates civilian offences under military jurisdiction, service members can also be charged with offences under ss. 73 to 129 of the NDA. Many of the offences under ss. 73 to 129 do not have an analogue in the civilian context, and are specific to the military (R. v. Hannah, 2013 CM 2011). Where such offences are charged, no military connection analysis is required, as these offences are inherently military in nature.

[181] As described above, the community's interest in prosecuting serious offences in civilian courts is protected by the right to a jury trial. This consideration mitigates in favour of interpreting the s. 11(f) exception narrowly. It is not, however, assessed in determining whether there is a military connection for the purposes of s. 11(f). Rather, it supports the conclusion that the exception should be interpreted narrowly.

[182] In sum, when an accused is charged under s. 130(1)(a) of the NDA, courts must determine whether there is a sufficiently direct connection between the circumstances of the offence and the military. To determine whether there is a sufficiently direct connection, a court should consider whether the offence was committed while the accused was on duty, on military property, or using military property. If so, it can generally be inferred that the circumstances of the offence have a direct impact on military efficiency, discipline and morale. If the prosecution cannot demonstrate a sufficiently direct connection between the circumstances of the offence and the military, the military court lacks jurisdiction under s. 130(1)(a) with respect to accused persons charged with offences for which the maximum punishment is imprisonment for five years or more.

C. Section 1 Analysis

[183] Without a military connection, subsuming civilian offences under military jurisdiction through s. 130(1)(a) infringes s. 11(f) of the Charter. The burden is on the Crown to show that the infringement is saved by s. 1 of the Charter. Here, the Crown concedes that if s. 130(1)(a) is found to breach s. 11(f), it cannot be saved by s. 1. We agree that it cannot be saved.

[184] Indeed, it is difficult to contemplate that such an infringement could be justified under s. 1.

[185] The objective of s. 130(1)(a) — to maintain discipline, efficiency and morale in the armed forces — is sufficiently important to pass the "pressing and substantial" objective prong of the test laid out in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. Further, as noted by this Court in Moriarity, s. 130(1)(a) is rationally connected to that objective. The issue is with minimal impairment.

[186] The historical account shows that concern for military efficiency and the related matter of discipline was a thread in the development of military court jurisdiction. However, trying civilian offences in military courts that are unrelated to the military may have the opposite effect on discipline and on morale when the right to a jury trial is denied, as this Court recognized in Re Colonel Aird, [2004] HCA 44, 209 A.L.R. 311 (High Court of Australia):

But it may be assumed that the importance of morale in a defence force is no doubt very great. It is likely to be put at serious risk however if charges against soldiers in respect of criminal misconduct committed on leave in a foreign country in circumstances totally unrelated to their military activities and duties, are to be heard and determined by military courts.

[187] It is not obvious that trying ordinary offences in military courts will improve military discipline, efficiency and morale. In fact, doing so may have the opposite effect. The independence of civilian courts can enhance the confidence of military members in how criminal matters are treated. Further, research suggests that in the military, discipline and morale are best achieved through adherence to military standards by chain of command.

[188] The above highlights that s. 130(1)(a) is not carefully tailored to its objectives — it impairs the right to a jury trial more than is reasonably necessary. A minimally impairing alternative would have been to try penal offences by military panel only where the circumstances in which it was committed are directly connected to the military. The provision cannot be saved under s. 1.

D. Reading In Is the Appropriate Remedy

[189] The appropriate remedy is to read a military connection requirement into s. 130(1)(a). We note that neither party has put forward this position. The accused persons' request that s. 130(1)(a) of the NDA be declared inoperative does not follow as the appropriate remedy given the exception in s. 11(f). Consistent with the reasoning in Stillman, a military connection requirement can be read into s. 130(1)(a) to bring it into conformity with s. 11(f).

[190] The remedy of reading in is appropriate where it would further respect for the role of the legislature and the purposes of the Charter (Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] 1 S.C.R. 493, at p. 56).

[191] In our opinion, reading in a military connection requirement is faithful to the legislative objective of s. 130(1)(a). Granting military courts jurisdiction where appropriate, while respecting the right to a jury trial, recognizes the objective of s. 130(1)(a) of maintaining discipline, efficiency and morale. Respecting an individual's Charter rights, while ensuring that military courts have jurisdiction over offences that are sufficiently connected to the military, fully respects both the legislative objective and the right to a jury trial.

[192] Reading in is preferable as a remedy to striking down s. 130(1)(a), as it "immediately reconciles the legislation in question with the requirements of the Charter" (Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679, at p. 716). As s. 130(1)(a) deals with a large number of service offences, striking down the provision would prevent the trial of all those offences in military courts — a result that goes much further than is necessary to remedy the Charter breach.

[193] When an accused is charged with an offence where the maximum punishment is imprisonment for five years or a more severe punishment, a military court must read s. 130(1)(a) as follows to determine whether it can try the offence alleged:

130 (1) An act or omission committed by a service member that is military in nature or is committed in circumstances directly connected to the military

(a) that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament,

is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsections (2).

IV. Conclusion

[194] Section 130(1)(a) is constitutional with respect to s. 11(f) of the Charter if we read in a military connection test. To give effect to the purpose of the jury trial right — both in terms of the accused's interest in a trial by jury and the community's interest in participating in the prosecution of serious offences — the offence must have a military connection. We would allow the appeals in Stillman, allow the appeal in Beaudry in part, and replace the Court Martial Appeal Court's order in Beaudry of a declaration of invalidity with an order to read in a military connection requirement to s. 130(1)(a).

[195] We would allow the appeals in Stillman, allow the appeal in Beaudry in part, and replace the Court Martial Appeal Court's order in Beaudry of a declaration of invalidity with an order to read in a military connection requirement to s. 130(1)(a).

Appeals in Stillman dismissed, Karakatsanis and Rowe JJ. dissenting.

Appeal in Beaudry allowed, Karakatsanis and Rowe JJ. dissenting in part.

Solicitor for the appellants (37701) and respondent (38308): Defence Counsel Services, Gatineau.

Solicitor for the respondents (37701) and the appellant (38308): Canadian Military Prosecution Service, Ottawa.

Solicitors for the intervener Advocates for the Rule of Law (37701 and 38308): McCarthy Tétrault, Toronto.

[^1]: Ordinary civil offences may generally be tried in either the military justice system or the civilian justice system. The factors considered by prosecutors in streaming cases into one system or the other are outlined at paras. 102-3 of these reasons.

[^2]: As Private Déry is no longer involved in the litigation, we will refer to this decision as Stillman.

[^3]: The list of persons who are subject to the CSD, and hence who may be charged under s. 130(1)(a), is not challenged before this Court, and all of the accused persons in the present appeals were service members at the time they were charged.

[^4]: There are other categories of offences (see ss. 130(1)(b), 132, and 288 to 307 of the NDA).

[^5]: Except murder, manslaughter, or an offence relating to child abduction under ss. 280 to 283 of the Criminal Code (NDA, s. 70). Only civilian criminal courts have jurisdiction to try persons accused of those offences.

[^6]: When the Criminal Code was first enacted in 1892, it defined "military law" as including "The Militia Act and any orders, rules and regulations made thereunder, the Queen's Regulations and Orders for the Army; any Act of the United Kingdom or other law applying to Her Majesty's troops in Canada, and all other orders, rules and regulations of whatever kind relating to the military forces of Canada" (Criminal Code, 1892, S.C. 1892, c. 29, s. 3(o-1)).

[^7]: This language approximates Lamer C.J.'s statement in Généreux that "[t]here is . . . a need for separate tribunals to enforce special disciplinary standards in the military" (p. 293 (emphasis added)).

[^8]: "An act or omission . . . that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part VII, the Criminal Code or any other Act of Parliament, is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2)."