ARCHIVED - Appendix: Synopsis of Appeals
- Capt Clark (CMAC-545) was found guilty of disobedience of a lawful command under section 83 of the National Defence Act (NDA) and of two charges of committing an act to the prejudice of good order and discipline under s.129 of the NDA. She was found to have inappropriately communicated performance evaluation report discussions to a subordinate contrary to a direction not to do so and to have lied in statements denying misconduct. The Court Martial Appeal Court (CMAC) granted her appeal and ordered a new trial.
- Cpl Rivas (CMAC-548) was found guilty of sexual assault contrary to section 271 of the Criminal Code of Canada (CCC), and of one count of drunkenness contrary to section 97 of the NDA. The main issue on appeal was identification. The CMAC granted his appeal and ordered a new trial.
- Bdr Tomczyk (CMAC-549) was found guilty of one count under s. 129 of the NDA, that is to say, failing to appear before a military doctor when ordered to do so. The CMAC granted his appeal.
- Cpl Souka (CMAC-550) was found guilty of the lesser and included offence of assault under section 266 of the Criminal Code and one count of drunkenness under s.97 of the NDA. The appeal was confined exclusively to the issue of whether the judge erred in failing to grant the accused’s motion that his rights to a trial within a reasonable time under section 11(b) of the Charter had been violated. The CMAC dismissed the appeal.
- Capt Day (CMAC-551) was found guilty of two counts of negligent performance of a military duty under s.124 of the NDA and, alternatively, with two counts of neglect to the prejudice of good order and discipline under s.129 of the NDA. The charges related to an incident in Afghanistan where, as a result in a breakdown in communications, a Canadian tank fired in the direction of Canadian soldiers. His request to the appeal committee for counsel at public expense was unsuccessful and the appellant abandoned his appeal.
- Lt(N) Pearson (CMAC-552) plead guilty to assault under section 130 NDA and harassment under section 129 NDA contrary to Defence Administrative Orders and Directives 5012-0 (Harassment Prevention and Resolution). Lt(N) Pearson was sentenced to a severe reprimand and a fine of $8,000$. His application to the appeal committee was denied. He applied under Rule 20 to the Chief Justice of the CMAC for legal assistance. His application was dismissed. He abandoned his appeal.
- OS O’Toole (CMAC-556) applied to the Chief Justice of the CMAC under section 159.9 of the NDA to review the direction of a Military Judge to retain the member in pre-trial custody. The application was dismissed.
- Mr. Paul Wehmeier (CMAC-553) was the first civilian to be tried by court martial sitting in Canada for offences allegedly committed while he was a civilian accompanying the Forces abroad. The counts included sexual assault under section 130 NDA and section 271 of the Criminal Code, uttering threats under s. 130 NDA and section 264.1 (1) (a) of the Criminal Code and assault under s. 130 NDA and section 266 of the Criminal Code. The court martial terminated the proceedings under section 24(1) of the Charter for abuse of process. The Court explained that military jurisdiction over civilians should only be exercised if it is necessary or in the interest of the civilians themselves. The Minister of National Defence appealed the decision. As of the end of this reporting period, the CMAC had rendered no decision.
- Cpl Courneyea (CMAC-554) was found not criminally responsible (NCR) on account of mental disorder for charges of assault with a weapon, pointing a firearm and uttering threats contrary to s. 130 NDA and sections 267(a), 87, and 264.1 of the Criminal Code. This was the first court martial in which an accused successfully raised a defence of NCR on account of Post-Traumatic Stress Disorder. The Minister of National Defence appealed the decision. However, as of this reporting period, the CMAC has not rendered a decision.
- Cpl Cyr (CMAC-555) was found guilty of stealing, willfully making a false statement in a document required for official purposes, and improperly selling public property under sections 114, 125(a) and 116(a) of the NDA as well as possession of a prohibited device under s. 130 of the NDA and section 92(2) of the Criminal Code. The Appellant’s application to the Appeal Committee was rejected. He applied to the Chief Justice of the CMAC under Rule 20 for the appointment of counsel by the Director of Defence Counsel Services. As of the end of this reporting period, the Chief Justice had not rendered a decision.
- SLt Thibeault (CMAC-557) was found guilty of one offence of sexual assault contrary to s. 130 NDA and section 271of the Criminal Code. The Appellant was sentenced to imprisonment for six months and a reduction in rank from captain to second lieutenant. The appellant appealed his conviction on the basis that he did not receive the effective assistance of counsel. As of the end of this reporting period, the CMAC had rendered no decision.
- 2Lt Moriarity & Pte Hannah (CMAC 560). 2Lt Moriarity was found guilty of sexual interference, sexual assault and invitation to sexual touching contrary to section 130 of the National Defence Act and sections 153, 271 and 152 of the Criminal Code. The charges related to his interactions with cadets while a Cadet Instructor. He was sentenced to 12 months imprisonment, dismissal from Her Majesty’s service and reduction in rank. Pte Hannah was convicted under s. 130(1)(a) of the National Defence Act and provisions of the Controlled Drugs and Substances Act and the Foods and Drugs Act of trafficking steroids. At trial, both appellants argued the overbreadth of section 130(1)(a) of the National Defence Act in violation of sections 7 and 11(f) the Charter. The military judges in both cases rejected the constitutional argument on the basis that the purpose of the military justice system was not restricted to matters pertaining directly to military discipline. As of this reporting period the CMAC has rendered no decision.
- Pte Larouche (CMAC 558) was found guilty of voyeurism and child pornography contrary to s. 130 of the National Defence Act and subsections 162(5) and 163.1(4) of the Criminal Code. He was sentenced to 12 months imprisonment. The Military Judge dismissed an application to exclude evidence under s. 24(2) of the Charter. Of note, the Military Judge asked whether the interests of justice and the public in this case would have been better served by trial before a civilian criminal court. The conviction was appealed to the CMAC. As of this reporting period the CMAC had rendered no decision.
- Lt Watts (CMAC 559) was found guilty of one count of unlawfully causing bodily harm contrary to s. 130 of the National Defence Act and section 269 of the Criminal Code as well as 2 counts of negligent performance of a military duty contrary to section 124 NDA. He was sentenced to a reduction in rank and a severe reprimand. Lt Watts appealed his conviction and sentence. As of the end of this reporting period, the CMAC had rendered no decision.