Chapter Four: The Conclusion of R v Stillman

The SCC’s decision in R v Stillman recognized that section 130(1)(a) of the NDA is constitutional and consistent with section 11(f) of the Charter.^{Footnote 38} The Stillman decision upheld the CMAC’s decision in R v Déry^{Footnote 39} and overturned the CMAC’s decision in R v Beaudry.^{Footnote 40}

Background

On 19 September 2018, in Beaudry, the CMAC declared section 130(1)(a) of the NDA to be in violation of section 11(f) of the Charter.^{Footnote 41} Specifically, the CMAC declared that section 130(1)(a) “is of no force or effect in its application to any civil offence for which the maximum sentence is five years or more.”^{Footnote 42}

The CMAC did not suspend its declaration of invalidity. This had a significant impact on prosecutions since at the time of the Beaudry 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. Within 48 hours of the CMAC decision in Beaudry, the DMP, on behalf of the MND, 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 section 130(1)(a) of the NDA until the SCC had rendered a decision on the appeal.

On 13 November 2018, the Chief Justice of Canada directed that the cases of Beaudry and Stillman be heard together in a single hearing set for 26 March 2019, and on 14 January 2019, the SCC dismissed the request for a stay of execution. This meant that the finding of unconstitutionality of section 130(1)(a) 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.

Additionally, 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. At the end of the previous reporting year, ten cases had been transferred to the civilian justice system. An information was laid in eight cases and civilian prosecutors declined to proceed in two cases.

The CMAC’s decision in Beaudry was not the first time that the CMAC considered this issue. In June 2016, in the case of R v Royes, the CMAC unanimously ruled that section 130(1)(a) did not violate section 11(f) of the Charter.^{Footnote 43} 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 the Royes decision and ruled that section 130(1)(a) did not violate section 11(f) of the Charter.^{Footnote 44} Therefore, in Beaudry, the CMAC overturned two of its previous decisions on this matter.^p

The SCC’s Decision in Stillman

On 26 July 2019, in Stillman, the SCC ruled that section 130(1)(a) of the NDA is consistent with section 11(f) of the Charter.^{Footnote 45}

The SCC seized the opportunity to summarize and affirm its prior jurisprudence relating to the military justice system. First, the SCC recalled its decision in Mackay v The Queen which recognized the constitutionality of section 130(1)(a) as a valid exercise of Parliament’s power under section 91(7) of the Constitution Act, 1867.^{Footnote 46} The SCC also reemphasized its decision in R v Généreux, which recognized the uniqueness of the military justice system as an essential mechanism to properly perform the public function of “maintaining discipline and integrity in the Canadian Armed Forces.”^{Footnote 47} Finally, the SCC upheld its decision in R v Moriarity, and refused to require a military nexus when charging a service member under section 130(1)(a) other than “the accused’s military status.”^{Footnote 48}

The central issue for the SCC in Stillman was the application of the Charter’s 11(f) exception to section 130(1)(a) of the NDA. To answer that question, the SCC first looked at the nature of the 11(f) exception, which involved a detailed comparison between a civilian jury and a military panel. The SCC then considered the objectives of section 130(1)(a) of the NDA, and whether or not offences under this provision were indeed offences under “military law.”

In its decision, the SCC clearly distinguished the military panel from the civilian jury. The SCC’s analysis is premised on the fact that the military justice system “has never provided for trial by jury.”^{Footnote 49} While the SCC did find some similarities between civilian juries and military panels, the Court was clear that a military panel is not a jury.^{Footnote 50} Nevertheless, the SCC explained that the military panel provides a similar level of Charter protection.^{Footnote 51} The SCC explained that military panel members bring military experience and integrity to the military judicial process. They also provide “the input of the military community responsible for discipline and military efficiency.”^{Footnote 52} Given the construct of military panels, the SCC found that they provided sufficient protection to an accused, given the unique objectives of the military justice system.

Turning to the section 130(1)(a) analysis, the SCC unequivocally explained that there is no distinction between an offence directly codified in sections 73-129 of the NDA and those offences incorporated by reference under section 130(1)(a).^{Footnote 53} The SCC found that “to reason otherwise would be to privilege form over substance.”^{Footnote 54} The SCC reminded us that Parliament has the power to decide what constitutes an offence under military law, by virtue of section 91(7) of the Constitution Act, 1867.^{Footnote 55} Also, the SCC explained that the military justice system would not be able to achieve the unique military sentencing objectives listed in section 203.1(2) of the NDA if the CAF were unable to prosecute section 130(1)(a) offences.

In closing, the SCC discussed how prosecutors decide whether a service member’s case proceeds through military or civilian courts. The Court explained that the role of deciding whether jurisdiction should be exercised in any particular case – and what factors guide that decision – is properly left to military prosecutors.^{Footnote 56} In this context, the SCC highlighted with approval the policy directive published by the DMP, which guides prosecutorial decisions.^{Footnote 57} Finally, the Court noted the historic and ongoing “cooperation and mutual respect” between military and civilian prosecutors in making those decisions.^{Footnote 58}

In the aftermath of the Stillman decision, Cpl Beaudry’s conviction was restored. The cases that were transferred to the civilian justice system following the CMAC’s decision in Beaudry are still proceeding. In some of those cases, military prosecutors have assisted their civilian counterparts in answering unreasonable delay applications filed by defense counsels under section 11(b) of the Charter. In at least two cases where delay applications were filed, provincial court judges from the provinces of Quebec and Ontario have ruled that the delay resulting from the transfer of military cases to the civilian justice system by reason of the CMAC’s decision in Beaudry constituted “exceptional circumstances” as defined by the SCC in R v Jordan.^{Footnote 59}