Appendix: Synopsis of Appeals - 2013-14
- Mr. Wehmeier (CMAC-553) was charged under section 130 of the NDA with criminal acts allegedly committed while he was a civilian accompanying the Canadian Forces in Germany. At trial in Canada, the Military Judge terminated the proceedings for abuse of process. The prosecution appealed. The CMAC dismissed the appeal and found that the proceedings resulting from the prosecutorial decision to try Mr. Wehmeier by court martial in Canada were arbitrary, disproportionate and contrary to the Charter. Subsequent to this reporting period the Director of Military Prosecutions has made an application for leave to appeal the decision to the Supreme Court of Canada.
- Cpl Courneyea (CMAC-554) was charged under section 130 of the NDA with assault with a weapon, pointing a firearm and uttering threats. The accused successfully raised a defence of not criminally responsible (NCR) on account of Post-Traumatic Stress Disorder. The appeal to overturn this decision was dismissed by the CMAC. This is the first appellate decision in Canada to uphold a defence of NCR based on a diagnosis of PTSD.
- Cpl Cyr (CMAC-555) was found guilty of stealing, wilfully making a false statement in a document required for official purposes, and improperly selling public property as well as possession of a prohibited device under s. 130 of the NDA. His request to the Appeal Committee for publicly funded appellate counsel was denied. His further application to the Chief Justice of the CMAC for appointment of publicly founded counsel under rule 20 was denied. The member abandoned his appeal.
- SLt Thibeault (CMAC-557) was found guilty of one count of sexual assault contrary to s. 130 of the NDA. He was sentenced to imprisonment for six months and a reduction in rank from captain to second lieutenant. The member appealed his conviction on the basis that he did not receive the effective assistance of counsel. His appeal was granted. His conviction was set aside and a new trial was ordered.
- 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(1)(a) of the NDA in relation to activities with cadets while he was 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 NDA for trafficking steroids. At trial, both appellants argued the overbreadth of section 130(1)(a) in violation of sections 7 and 11(f) of 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. The CMAC dismissed the appeal but “read down” s. 130(1)(a) such that military justice has jurisdiction only over to matters that pertain directly to military discipline. Both members appealed to the CMAC where the court joined the cases and rendered judgment which narrowed the jurisdiction of our military courts but upheld each conviction. Subsequent to this reporting period the Supreme Court of Canada has granted leave to appeal the issue of the overbreadth of section 130.
- Pte Larouche (CMAC 558) was found guilty under section 130 of the NDA of charges of voyeurism and child pornography. He was sentenced to 12 months imprisonment. The conviction was appealed to the CMAC where the member raised the unconstitutionality of s. 130(1)(a) of the NDA and challenged the constitutionality of the search of his computer. Subsequent to this reporting period, the search was found to be illegal and the conviction overturned.
- Lt Watts (CMAC 559) was found guilty of one count of unlawfully causing bodily harm contrary to s. 130 of the of the NDA as well as 2 counts of negligent performance of a military duty after an accident on a range in Afghanistan. He was sentenced to a reduction in rank and a severe reprimand. He appealed his conviction and sentence and the prosecution cross-appealed the sentence. The appeal was heard on 4 April 2014 and the CMAC has reserved its judgment.
- Sgt Arsenault (CMAC 561) was found guilty of one count of fraud contrary to section 130 of the NDA and of wilfully making a false declaration in a document required for official purposes. He was sentenced to a reduction in rank from WO to Sgt and to 30 days imprisonment. The member appealed, challenging the military judge’s ruling that his children were not, within the context of his living arrangements, dependents within the definition of the Income Tax Act. He also raised the unconstitutionality of sections 130(1)(a) and 117(f) of the NDA. Subsequent to this reporting period the appeal was dismissed by the CMAC.
- Capt Wright (CMAC 562) was tried on two counts of obstructing justice contrary to s. 130 of the NDA and two counts alleging an act to the prejudice of good order and discipline. The Military Judge found that evidence had been obtained contrary to s. 8 of the Charter and it was excluded under s. 24. Capt Wright was found not guilty of all charges. The prosecution’s appeal to the CMAC was dismissed.
- Pte Vezina (CMAC 564) was tried on two counts of trafficking cocaine contrary to s. 130 of the NDA. The Military Judge rejected her defence of entrapment, found her guilty, and sentenced her to six months imprisonment. The CMAC rejected her appeal of the constitutionality of s. 130(1)(a) of the NDA. Subsequent to this reporting period the Supreme Court of Canada has granted leave to appeal on this issue.
- MCpl Laflamme (CMAC 565) was tried and found guilty on two counts of obstructing a peace officer contrary to s. 130 of the NDA. He received a reprimand and a fine of six hundred dollars. The member hired private counsel and, subsequent to this reporting period, the CMAC granted his appeal and ordered a new trial.
- Pte Dery (CMAC 566) was tried on one count of sexual assault contrary to s. 130 of the NDA. He was found guilty and sentenced to 30 days imprisonment. On appeal to the CMAC Pte Dery challenged the constitutionality of the section 130(1)(a) of the NDA. This appeal has not yet been heard.
- MCpl Stillman (CMAC 567) was convicted under section 130(1)(a) on a variety of weapon offences including discharging a weapon with intent to wound, discharge of a restricted weapon in a manner reckless to life and safety, aggravated assault, using a firearm in the commission of an offence and possession of a loaded restricted firearm. He was sentenced to 6 years imprisonment and dismissal from Her Majesty’s Service. The member appealed to the CMAC challenging the constitutionality of the section 130(1)(a) of the NDA. At the conclusion of this reporting period the appeal has not yet been heard.
- MCpl Royes (CMAC 568) was found guilty of one count of sexual assault contrary to s. 130 of the NDA and was sentenced to 36 months imprisonment. The member appealed challenging both the constitutionality of the section 130(1)(a) of the NDA and the Military Judge’s assessment of his credibility. At the conclusion of this reporting period this appeal had not yet been heard.
- MCpl Holloway (CMAC 569) was tried under section 130(1)(a) of the NDA of one count of possession of child pornography and one count of accessing child pornography contrary to sections 163.1(4) and 163.1(4.1) of the Criminal Code. He was found not guilty on both counts. The Director of Military Prosecutions appealed the findings of the Court Martial but has subsequently abandoned his appeal.
- Maj Wellwood (CMAC 571) was found guilty of one count of obstructing a peace officer contrary to s. 130 of the NDA and one count of conduct to the prejudice of good order and discipline. She was sentenced to a reprimand. The member appealed to the CMAC challenging constitutionality of s. 130(1)(a) of the NDA and the legality of the Military Judge’s instructions to the panel. This appeal has not yet been heard.