ARCHIVED - Appendix: Court Martial Appeal Court of Canada Cases for 2011-2012
- Ex-Pte St-Onge (CMAC–517) On 26 June 2008, Ex-Pte St-Onge appealed the results of his court martial in which he had pled guilty to charges of possessing cannabis, using cannabis and methamphetamine, unauthorized possession of CF ammunition, and verbally threatening a superior. The grounds of appeal were based on the jurisdiction of the court and that the sentence of thirty (30) days imprisonment was too severe. In August of 2010 the CMAC dismissed the appeal of jurisdiction but reduced the sentence to a fine of $3,000. One judge dissented. The DMP, on behalf of the Minister of National Defence, appealed the decision to the Supreme Court of Canada. In April 2011 the Supreme Court granted the appeal and restored the sentence of the Military Judge.
- Cpl T. Leblanc (CMAC-538) was found guilty of sexual assault pursuant to section 271 of the Criminal Code and was sentenced to imprisonment for 20 months. During the course of the trial the military judge had refused to admit statements made by the victim which were relevant to the member’s reasonable belief that the victim had consented to the sexual activities. The accused appealed his conviction. On 12 October 2011 the CMAC overturned the conviction and sent the matter back for a new trial. The member was subsequently acquitted at court martial in April 2012.
- Cpl A. Leblanc (CMAC-539) was found guilty of negligently performing a military duty and was sentenced to a $500 fine. He made pre-trial motions under sections 7, 11(d) and 12 of the Charter challenging the constitutionality of the military scale of punishments as well as the independence of Military Judges. These were dismissed. In March 2010 the member filed a notice of appeal in relation to both the finding of guilt and the military judge’s independence. On 2 June 2011, the CMAC upheld the finding of guilt. However, it found that the Military Judge, under the re-appointment provisions existing at the time, lacked the requisite independence. This has since been corrected by legislation.
- Capt Day (CMAC-543) was charged with two counts of negligent performance of a military duty (s.124 NDA) and, alternatively, with two counts of neglect to the prejudice of good order and discipline (s.129 NDA) in relation to an incident in Afghanistan where a Canadian tank fired in the direction of Canadian soldiers. The military judge granted a motion that the prosecution had failed to present a prima facie case and found the member not guilty of all charges. The ruling was appealed and, in May 2011, a new trial ordered. The member was, on 20 November 2011, found guilty and was sentenced to a reprimand and a fine of $5000.
- Capt Day (CMAC-551) the member appealed the results of his second court martial, but abandoned his appeal on 26 August 2011 as the Appeal Committee had denied his request for DDCS representation at public expense.
- Capt Clark (CMAC-545) was found guilty of disobedience of a lawful command (s.83 NDA) and two charges of committing an act to the prejudice of good order and discipline (s.129 NDA). She was found to have inappropriately communicated performance evaluation report discussions to a subordinate contrary to a direction and to have lied in statements denying the misconduct. In February 2011 the member appealed the findings of guilt. The case was heard by the CMAC on 24 February 2012 and she was acquitted.
- Capt MacLellan (CMAC-546) DCS was not counsel in this case. It involved an appeal of a decision of the Military Judge to allow the re-election as to mode of trial after the actual commencement of a General Court Martial. On 28 October 2011, the CMAC ordered a new trial.
- Sgt Olive (CMAC-547) was found guilty of conduct to the prejudice of good order and discipline under s. 129 of the NDA and sentenced to a reprimand and a fine of $1,500. On 26 August 2011 the appellant abandoned his appeal after the Appeal Committee denied his request for DDCS representation at public expense.
- Cpl Rivas (CMAC-548) was found guilty of sexual assault contrary to section 271 of the Criminal Code, and an offence of drunkenness contrary to s. 97 of the NDA and sentenced to imprisonment for 9 months. The appeal committee denied his request for representation at public expense on the basis that the case did not have a reasonable chance of success. Upon the receipt of further material, the appeal committee reconsidered their decision and authorized counsel at public expense. The CMAC heard the parties on 23 March 2012 and ordered a new trial. He was never subsequently tried.
- Bdr Tomczyk (CMAC-549) was found guilty of one offence under s. 129 of the NDA for failing to follow medical direction. The matter was heard by the CMAC on 22 June 2012 and the member was acquitted.
- Cpl Souka (CMAC-550) was found guilty of the lesser and included offence of assault (s. 266 CCC) and the offence of drunkenness (s. 97 NDA). The appeal was confined exclusively to the issue of whether the trial had taken place within a reasonable time (18 months) under section 11(b) of the Charter of Rights and Freedoms. The CMAC ruled that his right had not been violated.
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