Appendix: Synopsis of Appeals

  • 2Lt Moriarity (CMAC 560) was found guilty of sexual interference, sexual assault and invitation to sexual touching contrary to s. 130(1)(a) of the NDA. 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 to 2Lt. At trial and on appeal to the CMAC he argued the overbreadth of s. 130(1)(a) of the NDA in violation of ss.7 and 11(f) of the Charter. The Military Judge rejected this argument on the basis that the military justice system was not restricted to matters pertaining directly to military discipline. The CMAC joined this case with that of Pte Hannah, dismissed the appeal but “read down” s. 130(1)(a) to matters that pertain directly to military discipline. An application for Leave to Appeal was granted by the Supreme Court of Canada (SCC) and the matter was set down for hearing to take place 12 May 2015.
  • Pte Hannah (CMAC 563) was convicted under s. 130(1)(a) of the NDA for trafficking steroids. At trial, he argued the overbreadth of s. 130(1)(a) of the NDA in violation of ss. 7 and 11(f) of the Charter. The Military Judge rejected the arguments and found that the purpose of the military justice system was not restricted to matters pertaining directly to military discipline. The CMAC joined his case with that of 2Lt Moriarity, dismissed the appeal but “read down” s. 130(1)(a) to matters that pertain directly to military discipline. An Application for Leave to Appeal was granted by the Supreme Court of Canada in conjunction with that of 2Lt Moriarity and the matter was set down for hearing to take place 12 May 2015.
  • Pte Larouche (CMAC 558) was found guilty of voyeurism and child pornography contrary to s. 130(1)(a) of the NDA. Both at trial and on appeal the member raised the unconstitutional overbreadth of section 130(1)(a) of the NDA and the unconstitutionality of the specific search of his home that had taken place in violation of section 8 of the Charter. The Military Judge sentenced him to 12 months imprisonment but, in making his rulings, did question whether the interests of justice and the public might have been better served by a trial before a civilian criminal court. On appeal to the CMAC the conviction was overturned and an acquittal entered on both charges on the basis of the unconstitutional search.
  • Lt Watts (CMAC 559) was found guilty of one count of unlawfully causing bodily harm contrary to s. 130(1)(b) of the of the NDA as well as 2 counts of negligent performance of a military duty contrary to s. 124. He was sentenced to a reduction in rank from major to lieutenant and a severe reprimand. He appealed both conviction and sentence. His appeal was allowed and the Director of Military Prosecutions has decided that he will not be retried.
  • Pte Vezina (CMAC 564) was tried on two counts of trafficking in cocaine contrary to s. 130(1)(a) of the NDA. Her defence of entrapment was rejected and she was found guilty and sentenced to six month imprisonment. On appeal, Pte Vezina argued both entrapment and the unconstitutionality of s. 130(1)(a) of the NDA. The CMAC dismissed the appeal. An Application for Leave to Appeal was granted by the Supreme Court on the constitutional question and the case was joined with the appeals of 2Lt Moriarity and Pte Hannah to be heard on 12 May 2015.
  • Sgt Arsenault (CMAC 561) was convicted of fraud under s. 130(1)(a) of the NDA as well as willfully making a false declaration in a document required for official purposes contrary to s. 125. He was also charged in the alternate under section 117(f). He was sentenced to a reduction in rank from WO to Sgt and 30 days imprisonment. The member appealed his conviction both on the merits of the case and the unconstitutionality of ss. 130(1)(a) and 117(f) of the NDA. His appeal was dismissed by the CMAC and an Application for Leave to Appeal was granted by the Supreme Court of Canada. His case was joined with the appeals of Moriarity, Hannah, and Vezina to be heard on 12 May 2015.
  • Capt Wright (CMAC 562) was tried on two counts of obstructing justice contrary to s. 130(1)(a) of the NDA and two counts alleging an act to the prejudice of good order and discipline contrary to s. 129. The Military Judge found that evidence had been obtained contrary to s. 8 of the Charter and it was excluded under s. 24. He was found not guilty of all charges. The CMAC dismissed the Minister’s appeal.
  • MCpl Laflamme (CMAC 565) was tried on two counts of obstructing a peace officer in the course of his duties contrary to s. 130(1)(a) of the NDA. He was found guilty on both charges and sentenced to a reprimand and a $600 fine. MCpl Laflamme had his request to the Appeal Committee for publicly funded appellate counsel denied. He filed a notice of appeal and hired civilian counsel. The appeal was allowed, the guilty verdicts set aside and a new trial ordered on both charges.
  • Pte Dery (CMAC 566) was tried on one count of sexual assault contrary to s. 130(1)(a) of the NDA. He was found guilty and sentenced to 30 days imprisonment. On appeal, Pte Dery raised the unconstitutionality of section 130(1)(a). The hearing of this appeal has been postponed by the CMAC pending the judgement of the Supreme Court on this issue.
  • MCpl Stillman (CMAC 567) was convicted under section 130(1)(a) of the NDA of multiple weapons offences including: discharge of a weapon with intent to wound, discharge of a restricted weapon while reckless as to life and safety, aggravated assault, use of a firearm in the commission of an offence and possession of a loaded restricted firearm. He was sentenced to 6 years imprisonment and dismissal. On appeal, MCpl Stillman raised the unconstitutionality of s. 130(1)(a) of the NDA. The hearing of this appeal has been postponed by the CMAC pending the decision of the Supreme Court on this same issue.
  • MCpl Royes (CMAC 568) was convicted on one count of sexual assault contrary to s. 130(1)(a) of the NDA. He was sentenced to 36 months imprisonment. He raised the unconstitutionality of s. 130(1)(a) of the NDA and challenged the adequacy of the Military Judge’s reasons. The hearing of this appeal has been postponed pending the decision of the Supreme Court on the constitutional issue.
  • MCpl Holloway (CMAC 569) was tried on one count of possession of child pornography and one count of accessing child pornography contrary to s. 130(1)(b) of the NDA. He was found not guilty on both counts. The Minister filed and then abandoned his appeal.
  • Maj Wellwood (CMAC 571) was found guilty of one count of obstructing a peace officer in the course of his duties contrary to s. 130(1)(a) of the NDA and one count of conduct to the prejudice of good order and discipline contrary to s. 129. She was sentenced to a reprimand. Maj Wellwood raised the unconstitutionality of s. 130(1)(a) and the adequacy of the Military Judge’s instructions to the panel. The hearing of this appeal has been postponed pending the decision of the Supreme Court on the constitutional issue.
  • WO Brideau (CMAC 572) was found not guilty of one count of conduct to the prejudice of good order and discipline contrary to s. 129 of the NDA and one count of negligent performance of a military duty contrary to s. 124. These charges were in relation to an accidental discharge of his weapon in Afghanistan. The Minister filed and then abandoned his appeal.
  • MCpl Laliberte (CMAC 576) was found guilty of one count of interception of a private communication contrary to s. 130(1)(a) NDA, as well as two counts of behaving with contempt towards a superior officer under s. 85. He was fined one-thousand dollars. The member’s civilian counsel did not raise the overbreadth of s. 130(1)(a) and the member filed an appeal with the CMAC alleging ineffective assistance of counsel and challenging both the finding and punishment. The member applied to the Appeal Committee requesting assistance at public expense and was granted such assistance solely in respect of the constitutionality of section 130(1)(a). The subsequent motion was denied by the CMAC on the grounds that the issue had not been raised at trial. MCpl Laliberté subsequently abandoned his remaining grounds of appeal.
  • Ex-PO2 Wilks (CMAC 574) was found guilty of ten counts of sexual assault and fifteen counts of breach of trust contrary to s. 130(1)(a) of the NDA. He was sentenced to 30 months imprisonment. The former member raised the unconstitutionality of s. 130(1)(a) and challenged the legality of the Military Judge’s findings. The hearing of his appeal has been postponed by the CMAC pending the decision of the Supreme Court on the constitutional issue.
  • Capt Yurczyszyn (CMAC 573) plead guilty to one count of drunkenness contrary to s. 97 of the NDA and was found guilty of one count of sexual assault contrary to s. 130(1)(a) of the NDA. He was sentenced to a reduction in rank from Major to Captain. He appealed the findings of the Court Martial and filed a motion requesting leave to appeal the unconstitutionality of s. 130(1)(a) of the NDA. He applied to the Appeal Committee for representation by DCS counsel at public expense which was granted solely on the issue of s. 130(1)(a). The CMAC denied the motion for leave to raise the constitutional issue as it had not been raised at trial and Capt Yurczyszyn subsequently abandoned his remaining grounds of appeal.
  • OS Cawthorne (CMAC 575) was found guilty of one count of possession of child pornography and one count of accessing child pornography contrary to s. 130(1)(b) of the NDA. He was sentenced to 30 days imprisonment. He appealed the finding of guilt based on an impropriety that occurred before the panel. The majority of a three judge panel of the CMAC allowed the appeal and directed a new trial. The Minister has appealed this direction and the matter is presently pending before the Supreme Court of Canada.
  • WO Gagnon (CMAC 577) was found by a General Court Martial to be not guilty of one charge of sexual assault contrary to s. 130(1)(a) of the NDA. The Minister appealed the acquittal and WO Gagnon filed a motion to quash the Minister’s Notice of Appeal on the grounds that the legislative authority for such an appeal violated s. 7 and 11(d) of the Charter. The CMAC has heard the matter and reserved its decision.
  • Lt(N) Klein (CMAC 578) was found guilty of one count of assault contrary to s. 130(1)(a) of the NDA. Lt(N) Klein raised the unconstitutionality of s. 130(1)(a). The hearing of this appeal has been postponed pending the decision of the Supreme Court on this issue.
  • Cpl Nadeau-Dion (CMAC 579) was found guilty of one count of exporting a substance contained in schedule IV of the Controlled Drugs and Substances Act contrary to s. 130(1)(a) of the NDA. He raised the unconstitutionality of s. 130(1)(a) and challenged the legality of the Military Judge’s findings. The hearing of this appeal has been postponed pending the decision of the Supreme Court on the constitutional issue.
  • Cpl Pfahl (CMAC 580) was found guilty of one count of production of a substance contained in schedule IV of the Controlled Drugs and Substances Act contrary to s. 130(1)(a) of the NDA. Cpl Pfahl raised the unconstitutionality of s. 130(1)(a). The hearing of this appeal has been postponed pending the decision of the Supreme Court on this issue.
  • Cpl Thibault (CMAC 581) was charged with one count of sexual assault contrary to s. 130(1)(a) of the NDA. He brought a plea in bar in accordance with article 112.24 of the Queens Regulations and Orders pleading that the Court had no jurisdiction as the charge lacked nexus with his military service and thus did not disclose a service offence. The plea in bar was granted and the proceedings terminated. The Minister filed a Notice of Appeal in the CMAC and Cpl Thibault brought a motion to quash the appeal on the grounds that the legislative authority for such appeal violated s. 7 and 11(d) of the Charter. The CMAC has heard the matter and reserved its decision.

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