Chapter Four: R v Beaudry

Following a Standing Court Martial held in July 2016, Corporal Beaudry was found guilty of having committed a sexual assault causing bodily harm, contrary to section 272 of the Criminal Code, under section 130 of the NDA.Footnote 25   He was sentenced to a term of imprisonment for 42 months and dismissal from Her Majesty’s service and was also required to provide DNA for the purpose of forensic DNA analysis, ordered to comply with the Sex Offender Information Registration Act for a period of 20 years and was prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of ten years.

Corporal Beaudry appealed the military judge’s decision to the CMAC arguing that section 130(1)(a) violates subsection 11(f) of the Canadian Charter of Rights and Freedoms by depriving him of his right to a trial by jury for a civil offence.Footnote 26   On 19 September 2018, the CMAC rendered its judgment and in a split decision, the majority set aside the guilty verdict and declared section 130(1)(a) of the NDA to be in violation of section 11(f) of the Charter for those offences where the accused faces punishment of five years imprisonment or more.Footnote 27  The conviction was quashed and Corporal Beaudry was released from prison after having served nearly 26 months.

The decision by the CMAC in Beaudry was not the first time that the court has considered this issue.  In June 2016, in the case of R v Royes the CMAC unanimously ruled that s. 130(1)(a) did not violate s. 11(f) of the Charter.  Later, in May 2017, a majority of the CMAC in the case of R v Déry disagreed with the conclusions in Royes, but found that they were nevertheless bound by Royes and ruled that s. 130(1)(a) did not violate s. 11(f) of the Charter.  The Déry decision was appealed to the SCC under the name R v Stillman.

In its decision in Beaudry, not only did the CMAC overrule two of its recent previous decisions on this matter, the Court did not suspend the declaration of invalidity at the time of the ruling meaning that the declaration would take effect immediately and any accused individuals charged under section 130(1)(a) of the NDA could no longer be tried for any civil offence committed in Canada for which a maximum sentence is five years imprisonment or more through the military justice system.

At the time of the ruling, there were 40 cases within the military justice system where the accused had been charged for a civil offence under section 130(1)(a) of the NDA.  This included 21 cases involving sexual related offences such as sexual assault, sexual exploitation and voyeurism.  Therefore, with no ability to proceed with these cases through the military justice system, within 48 hours of the CMAC decision in Beaudry, the DMP, on behalf of the Minister of National Defence, appealed the decision to the SCC and filed a motion requesting the SCC to order a stay of execution of the CMAC declaration of unconstitutionality of paragraph 130(1)(a) of the NDA until the SCC has rendered a decision on the appeal.  In addition, the DMP also filed a motion requesting to join the hearing of the appeal in Beaudry to the appeal in Stillman as they both relate to the same legal issue. 

On 13 November 2018, the Chief Justice of the SCC directed that the cases of Beaudry and Stillman be heard together in a single hearing set for 26 March 2019.  In addition, an oral hearing for the request for a stay of execution of the CMAC decision in Beaudry was set for 14 January 2019. 

At the hearing for the request for a stay of execution, counsel with the CMPS argued that a stay of the CMAC decision in Beaudry was necessary to allow cases to continue to proceed through the military justice system as it was better placed to ensure the maintenance of the discipline, efficiency and morale of the CAF.

However, the SCC dismissed the request for a stay of execution.  This meant that the finding of unconstitutionality of section 130(1)(a) of the NDA remained in place and any accused individuals charged under that section could not be tried through the military justice system at that time for civil offences committed in Canada for which a maximum sentence is five years imprisonment or more. 

Immediately following the ruling on the request for a stay of execution, the DMP communicated the decision to the highest levels of the chain of command within the CAF and set out the way ahead as to his intentions on how to proceed with those cases which were impacted by Beaudry.  The DMP directed his team to, where appropriate, determine whether cases could proceed under other NDA charges or whether those cases should proceed through the civilian justice system. The DMP expressly required his prosecutors to ensure that the appropriateness of any charge was to be considered on a principled basis and was not to be done simply to deny an accused his or her right to be tried by a jury through the civilian criminal justice system.

Over the course of the next several weeks, a number of steps were taken by military prosecutors in these cases to ensure that all impacted cases proceed in a fair and timely fashion and that the concerns of all victims were solicited, considered and addressed. 

At the end of the reporting period, there were a total of 40 prosecution cases which were impacted by the CMAC decision in Beaudry.  Of those cases, 18 affected cases remain in the military justice system; ten cases were referred to civilian prosecutors (an information was laid in eight cases and civilian prosecutors declined to proceed in two cases); six cases remain in the military justice system and are proceeding by non-affected charges; military prosecutors declined to proceed with charges and did not refer the case to civilian authorities in one case; and five cases have already proceeded through the military justice system by non-affected charges resulting in a finding of guilty.

Oral arguments were made to the SCC on 26 March 2019 in both the cases of Stillman and Beaudry.  It is expected that the SCC will rule on the constitutionality of s. 130(1)(a) in the next reporting period.

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