R. v. Stillman

R. v. Stillman
Collection
Supreme Court Judgments
Date
2019-07-26
Neutral citation
2019 SCC 40
Report
[2019] 3 SCR 144
Case number
37701, 38308
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
Court Martial Appeal Court of Canada
Subjects
Constitutional law
Notes
Case in BriefSCC Case Information: 37701, 38308
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144
Appeals Heard: March 26, 2019 Judgment Rendered: July 26, 2019 Dockets: 37701, 38308
Between:
Master Corporal C.J. Stillman Appellant
and
Her Majesty The Queen Respondent
And Between:
Ex-Petty Officer 2nd Class J.K. Wilks Appellant
and
Her Majesty The Queen Respondent
And Between:
Warrant Officer J.G.A. Gagnon Appellant
and
Her Majesty The Queen Respondent
And Between:
Corporal F.P. Pfahl Appellant
and
Canada (Minister of National Defence) Respondent
And Between:
Corporal A.J.R. Thibault Appellant
and
Her Majesty The Queen Respondent
And Between:
Second Lieutenant Soudri Appellant
and
Her Majesty The Queen Respondent
And Between:
K39 842 031 Petty Officer 2nd Class R.K. Blackman Appellant
and
Her Majesty The Queen Respondent
- and -
Advocates for the Rule of Law Intervener
And Between:
Her Majesty The Queen Appellant
and
Corporal R.P. Beaudry Respondent
- and -
Advocates for the Rule of Law Intervener
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown and Rowe JJ.
Joint Reasons for Judgment: (paras. 1 to 114)
Moldaver and Brown JJ. (Wagner C.J. and Abella and Côté JJ. concurring)
Joint Dissenting Reasons: (paras. 115 to 195)
Karakatsanis and Rowe JJ.
R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144
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
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] 2 S.C.R. 370; R. v. Généreux, [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] 1 S.C.R. 295; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Bryant (1984), 48 O.R. (2d) 732; R. v. Lee, [1989] 2 S.C.R. 1384; R. v. Trépanier, 2008 CMAC 3, 232 C.C.C. (3d) 498; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Sherratt, [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), 5 C.M.A.R. 157; R. v. Brown (1995), 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), 4 C.M.A.R. 277; Ionson v. The Queen (1987), 4 C.M.A.R. 433; Ryan v. The Queen (1987), 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] 1 S.C.R. 843; MacKay v. Rippon, [1978] 1 F.C. 233; R. v. Ryan, 2018 CM 2033; R. v. Reddick (1996), 112 C.C.C. (3d) 491.
By Karakatsanis and Rowe JJ. (dissenting)
MacKay v. The Queen, [1980] 2 S.C.R. 370; R. v. Généreux, [1992] 1 S.C.R. 259; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Lee, [1989] 2 S.C.R. 1384; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Air Canada v. British Columbia, [1989] 1 S.C.R. 1161; R. v. Kalanj, [1989] 1 S.C.R. 1594; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. CIP Inc., [1992] 1 S.C.R. 843; R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045; R. v. Sherratt, [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, [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), 4 C.M.A.R. 277; R. v. MacEachern (1985), 4 C.M.A.R. 447; Ryan v. The Queen (1987), 4 C.M.A.R. 563; Ionson v. The Queen (1987), 4 C.M.A.R. 433, aff’d [1989] 2 S.C.R. 1073; R. v. Brown (1995), 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), 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] 1 S.C.R. 103; Re Colonel Aird, [2004] HCA 44, 209 A.L.R. 311; Vriend v. Alberta, [1998] 1 S.C.R. 493; Schachter v. Canada, [1992] 2 S.C.R. 67.
Statutes and Regulations Cited
Act for punishing Officers or Soldiers who shall Mutiny or Desert Their Majestyes Service (Eng.), 1689, 1 Will. 3 & Mar. 2, c. 5.
Act respecting the Militia and Defence of the Dominion of Canada, S.C. 1868, c. 40.
Army Act, 1881 (U.K.), 44 & 45 Vict., c. 58, ss. 41, 48(3).
Bill C‑15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, 1st Sess., 41st Parl., 2013.
Bill C‑25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, 1st Sess., 36th Parl., 1998.
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.
Canadian Charter of Rights and Freedoms, ss. 1 , 7 to 14 , 11 .
Constitution Act, 1867, s. 91(7) , (27) .
Constitution Act, 1982, ss. 35 , 52 .
Criminal Code, R.S.C. 1970, c. C‑34, s. 2.
Criminal Code, R.S.C. 1985, c. C‑46 , Part VII, ss. 2, 271, 280 to 283, 367, 471, 718.
Criminal Code, 1892, S.C. 1892, c. 29, s. 3(o‑1).
Military Rules of Evidence, C.R.C., c. 1049, s. 16(2)(a).
National Defence Act , S.C. 1950, c. 43, ss. 119, 140(1).
National Defence Act, R.S.C. 1985, c. N-5 , Parts III, VII, ss. 2, 60, 68, 70, 71, 73 to129, 114, 130(1), 132, 165.193(1), 167 to 168, 191, 192(1), 203.1(1), (2), 273.601, 288 to 307.
Naval Discipline Act, 1866 (U.K.), 29 & 30 Vict., c. 109, s. 45.
Authors Cited
Blackstone, William. Commentaries on the Law of England, Book 4. Oxford: Clarendon Press, 1765.
Canada. Commission of Inquiry into the Deployment of Canadian Forces to Somalia. Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia, vol. 1, Dishonoured Legacy: The Lessons of the Somalia Affair. Ottawa, 1997.
Canada. Department of National Defence. Canadian Forces Administrative Order 19‑16 — Civil Prosecution, Ottawa, December 19, 1975
Canada. 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. Ottawa, 2011.
Canada. Department of National Defence. Second Independent Review of the National Defence Act — Backgrounder, June 8, 2012 (online: http://www.forces.gc.ca/en/news/article.page?doc=second-independent-review-of-the-national-defence-act/hgq87xrp; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC40_2_eng.pdf).
Canada. Department of National Defence. Military Justice at the Summary Trial Level, January 12, 2011 (online: https://www.canada.ca/content/dam/dnd-mdn/migration/assets/FORCES_Internet/docs/en/jag/manual-mil-jus-summary-trial-level.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC40_1_eng.pdf).
Canada. Department of National Defence. The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of the provisions and operation of Bill C‑25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, as required under section 96 of Statutes of Canada 1998, c. 35. Ottawa, 2003.
Canada. Director of Military Prosecutions. Directive No. 002/99. “Pre‑Charge Screening”, 2000 (updated September 2018) (online: https://www.canada.ca/content/dam/dnd-mdn/migration/assets/FORCES_Internet/docs/fr/a-propos-politiques-normes-juridiques/dmp-dpm-policy-directive-002-99-pre-charge-screening-verification-pre-accusation.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC40_3_eng-fra.pdf).
Canada. 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 27, 1950.
Canada. House of Commons. Official Report of Debates of the House of Commons, vol. IV, 2nd Sess., 21st Parl. 1950.
Canada. Office of the Auditor General. 2018 Spring Reports of the Auditor General of Canada to the Parliament of Canada: Report 3 — Administration of Justice in the Canadian Armed Forces. Ottawa, 2018.
Canada. Office of the Judge Advocate General. Draft Internal Report — Court Martial Comprehensive Review, January 17, 2018 (online: https://www.canada.ca/content/dam/dnd-mdn/migration/assets/FORCES_Internet/docs/en/jag/court-martial-comprehensive-review-interim-report-21july2017.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC40_4_eng.pdf).
Canada. 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.
Canada. Special Advisory Group on Military Justice and Military Police Investigation Services. Report of the Special Advisory Group on Military Justice and Military Police Investigation Services. Ottawa, 1997.
Clode, Charles. The Administration of Justice Under Military and Martial Law, London: John Murray, 1872.
Collins, Pauline Therese. “Civil‑Military ‘Legal’ Relations: Where to from Here? — The Civilian Courts and the United Kingdom, United States and Australia” in International Humanitarian Law Series, vol. 51. Leiden, Netherlands: Brill Nijhoff, 2018
Collins, Pauline Therese. “The Civil Courts’ Challenge to Military Justice and Its Impact on the Civil‑Military Relationship”, in Alison Duxbury and Matthew Groves, eds., Military Justice in the Modern Age. Cambridge: Cambridge University Press, 2016, 57.
Crowe, Jonathan, and Suri Ratnapala. “Military Justice and Chapter III: The Constitutional Basis of Courts Martial” (2012), 40 Fed. L. Rev. 161.
Deschamps, Marie. External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces, March 27, 2015 (online: https://www.canada.ca/content/dam/dnd-mdn/migration/assets/FORCES_Internet/docs/en/caf-community-support-services-harassment/era-final-report-april-20-2015-eng.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC40_5_eng.pdf).
Drapeau, Michel W. Sexual Assaults in the Canadian Military: Is the Military Making Headway? April 30, 2018 (online: http://mdlo.ca/wp-content/uploads/2018/04/April-30-2018-Is-the-Cnd-Military-making-headway-002.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC40_6_eng.pdf).
Fitzgerald, Thomas E. K. “The Nexus Disconnected: The Demise of the Military Nexus Doctrine” (2018), 65 Crim. L.Q. 155.
Friedland, Martin L. Double Jeopardy. Oxford: Clarendon Press, 1969.
Ho, Rubsen. “A World That Has Walls: A Charter Analysis of Military Tribunals” (1996), 54 U.T. Fac. L. Rev. 149.
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2017, release 1).
Hollies, J. H. “Canadian Military Law” (1961), 13 Mil. L. Rev. 69.
Létourneau, Gilles. Introduction to Military Justice: An Overview of the Military Penal Justice System and Its Evolution in Canada. Montréal: Wilson Lafleur, 2012.
Létourneau, Gilles, and Michel W. Drapeau. Military Justice in Action: Annotated National Defence Legislation, 2nd ed. Toronto: Carswell, 2015.
Macdonald, Ronald Arthur. Canada’s Military Lawyers. Ottawa: Office of the Judge Advocate General, 2002.
Madsen, Chris. Another Kind of Justice: Canadian Military Law from Confederation to Somalia. Vancouver: UBC Press, 1999.
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.
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.
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).
The judgment of Wagner C.J. and Abella, Moldaver, Côté and Brown JJ. was delivered by
Moldaver and Brown JJ. —
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). Its foundation is the Code of Service Discipline (“CSD”), contained in Part III of the NDA . The CSD, which is “an essential ingredient of service life” (MacKay v. The Queen, [1980] 2 S.C.R. 370, at p. 400), establishes the core features of the military justice system, including the categories of persons subject to the CSD, the “service offences” (as defined in s. 2 NDA ) which contravene the CSD, the jurisdiction of military courts (or “service tribunals”, as defined in s. 2 NDA ) to try these offences, and the processes for challenging their decisions.
[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 criminal and other federal offences (i.e., ordinary civil offences) that take place in Canada into service offences, thereby giving service tribunals jurisdiction (concurrent with civilian courts)[1] over such offences when committed by a person who is subject to the CSD.
[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 (see p. 397). That conclusion is not challenged here. Twelve years later in R. v. Généreux, [1992] 1 S.C.R. 259, the Court affirmed “[t]he existence of a parallel system of military law and tribunals, for the purpose of enforcing discipline in the military” (p. 295). This observation was made in the context of a challenge to the court martial system under s. 11(d) of the Charter — which guarantees the right to be tried by an independent and impartial tribunal — brought by a member of the Armed Forces charged under what is now s. 130(1)(a), among others. Most recently in Moriarity, this Court held that s. 130(1)(a) is not overbroad under s. 7 of the Charter (para. 56), even absent a “direct link” between the circumstances of the alleged offence and military duties (see paras. 35-36). This conclusion stemmed from the recognition that “[c]riminal 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” in the military (para. 52).
[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 other serious civil offences carrying a maximum punishment of at least five years’ imprisonment. Before various standing courts martial, the accused persons asserted their right to a trial by jury under s. 11(f) of the Charter ; maintained that the military exception 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. All but one of those challenges failed, and appeals ensued. While the accused persons’ appeals in R. v. Déry, 2017 CMAC 2, 391 C.R.R. (2d) 156 (“Stillman”)[2], were dismissed, 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 five years or more (hereinafter, “serious civil offence”).
[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 other “purely” military offences. In other words, they say that only “special standards of military discipline”, to which ordinary citizens are not subject, constitute “military law”.
[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) is no less “an offence under military law” than spying for the enemy, mutiny, insubordination, or any other service offence set out in the CSD.
[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 . As this Court’s jurisprudence confirms, s. 130(1) (a) is rooted in this head of power. 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).
[10] Accordingly, we would dismiss the appeals in Stillman and