ARCHIVED - Chapter 4: Military Justice: The Year in Review 2012-13

Along with the military justice strategic developments discussed in Chapter 2, this reporting period was highlighted by a number of significant decisions at both the court martial and Court Martial Appeal Court of Canada (CMAC) level along with other legislative developments that enhance the military justice system.

Cases of Note during the Reporting Period

Court Martial Decisions

R. v. Wehmeier

R. v. Wehmeier is notable as a case dealing with a civilian subject to the Code of Service Discipline (CSD). Mr. Wehmeier, a civilian accompanying a unit of the Canadian Armed Forces (CAF) in Germany, was charged with sexual assault, uttering threats, and assault under the CSD. The accused argued that the court martial lacked jurisdiction to try him on the basis that the provisions of the National Defence Act (NDA) making him subject to the CSD were overbroad and violated his rights guaranteed by the Canadian Charter of Rights and Freedoms (Charter).

The court martial determined that Mr. Wehmeier was subject to the CSD at the time of the alleged offences and that it had jurisdiction. However, following a further application submitted by the accused, the court martial held that the decision taken by the Director of Military Prosecutions to continue proceedings against Mr. Wehmeier instead of referring them to Canadian civilian authorities was arbitrary and amounted to an abuse of process. As a result, the court terminated the proceedings against Mr. Wehmeier. The case has been appealed to the CMAC.

R. v. Nauss

This case concerns the negligent discharge of a service weapon. The accused member was acquitted of charges related to failing to handle a C7 rifle in a safe manner. While performing the unload drill of his C7 rifle, the accused placed the barrel of the weapon into the steel tube of the clearing barrel and caused one live round to discharge into the clearing barrel. He was found not guilty of neglect to the prejudice of good order and discipline for failing to handle a C7 rifle in a safe manner. The court concluded that an omission (in conducting proper weapons drill) amounting to blameworthy negligence had not been proven beyond a reasonable doubt. On the contrary, it was held that despite the fact that the accused did not properly unload his rifle, he handled the weapon in the safest manner he could, as the weapon was discharged in a clearing barrel and, as such, it did not pose a risk or danger. The court further added that improperly performing weapons drill and causing it to fire when it was not intended or not authorized, does not automatically constitute a penal negligence offence within the meaning of section 129 of the NDA.

R. v. Larouche

The accused was charged with service offences that included voyeurism, conduct to the prejudice of good order and discipline, disgraceful conduct, and possession of child pornography. Military Police, after obtaining search warrants, conducted a ten-hour search in the accused’s home and found a large number of files containing child pornography on his computer. The accused alleged that the search and seizure violated his Charter rights, and sought exclusion of the evidence. A voir dire was held and the court martial ruled that the evidence was admissible. While the court martial found that the search warrant was invalid and the evidence was obtained in conditions that violated accused’s right to be secure against an unreasonable search, the evidence consisted of over 1,000 files, involved physical and psychological integrity of numerous alleged victims, and the warrants were not obtained through unacceptable police behaviour but on grounds incorrectly considered. As such, the court martial held that the public’s perception of the military justice system and courts martial in particular could be severely undermined if the evidence at issue were excluded. The court martial found that the admission of the evidence, under the circumstances, would not bring the administration of justice into disrepute. The court martial found the accused guilty of voyeurism and possession of child pornography. Ex-Private Larouche was sentenced to 12 months imprisonment. The case has been appealed to the CMAC.

R. v. Ravensdale

A General Court Martial panel found then-WO (retired) Ravensdale guilty of three offences contrary to section 130 of the NDA; namely, two counts of breach of duty in relation to an explosive substance and one count of unlawfully causing bodily harm. The accused was also found guilty of one count contrary to section 124 of the NDA, negligently performing a military duty imposed on him. The charges resulted from a tragic incident on 12 February 2010 in Kan Kala, Afghanistan, when one CAF member was killed and four others were seriously wounded following the detonation of a Defensive Command Detonated Weapon (C-19). Among other things, then-WO (retired) Ravensdale was found to have negligently performed a military duty by giving the order to fire the C-19, without ensuring, as it was his duty to do, that all persons were either under cover or withdrawn from the danger area. Then-WO (retired) Ravensdale was sentenced to imprisonment for a period of six months, reduction to the rank of Sergeant and a two thousand dollar fine. The carrying out of the sentence of imprisonment was suspended. The court martial also ordered the taking of bodily samples for DNA analysis.

Court Martial Appeal Court Decisions

Tomczyk v. R.

This CMAC decision makes the distinction between medical treatment and medical assessments in the CAF. Bombardier Tomczyk was convicted by a General Court Martial on a charge of conduct to the prejudice of good order and discipline, pursuant to NDA section 129, for failure to present himself for treatment as prescribed by his treating physician. The CMAC confirmed that under existing military instructions, military personnel are usually free to consent to or refuse medical treatment. Consequently, the refusal to present oneself for medical treatment cannot constitute conduct to the prejudice of good order and discipline under the meaning of subsection 129(1) of the NDA. Military personnel are obliged, however, to attend to medical assessments in order to ascertain their fitness for duties and the refusal to do so may constitute conduct to the prejudice of good order and discipline. In allowing the appeal and finding the accused not guilty, the CMAC determined that because the proper charge was not made against the Appellant, the military prosecutor should have amended the charge. Since no such amendment was made, the military judge erred in allowing the trial to proceed.

O’Toole v. R.

This is the first reported case of a review by the CMAC of a direction of a Military Judge to retain a person in pre-trial custody as provided in section 159.9 of the NDA. Following his arrest by military police for assault, Ordinary Seaman (OS) O’Toole was held in custody. Several charges were pending against him including failing to comply with prior conditions imposed to secure his release. A military judge directed that the member be retained in custody pending trial. OS O’Toole applied to the CMAC to have this direction reviewed and be released with conditions pending his trial. The CMAC determined that the applicable section of the NDA provides a wide discretion including conducting a de novo review and rendering the appropriate decision where an error is made in the initial order. It also sets out the considerations for a review under section 159.9 of the NDA. Following review of the military judge’s decision, the CMAC dismissed the application.

Other Legislative Initiatives

Bill C-54: An Act to Amend the Criminal Code and the National Defence Act (Mental Disorder)

On 8 February 2013, Bill C-54, Not Criminally Responsible Reform Act was introduced in Parliament. This legislation addresses concerns raised by victims of crime with respect to accused persons found not criminally responsible on account of mental disorder. The new legislation would amend both the Criminal Code and the NDA mental disorder regimes, and has the following main components:

• The legislation would explicitly set out that public safety is the paramount consideration in the decision-making process relating to accused persons found to be not criminally responsible on account of mental disorder;
• Further, the legislation would create a new high-risk designation to protect the public from high-risk accused persons who are found not responsible for offences on account of mental disorder. Upon being designated by a court martial as high-risk, an accused person found not responsible on account of mental disorder would be held in custody and not be considered for release by a Review Board until his or her designation is revoked by a court martial.;
• Finally the legislation would enhance the safety of victims by ensuring that they are specifically considered when decisions are being made about accused persons found not responsible on account of mental disorder such as ensuring they are notified when such an accused person is discharged; and providing for non-communication orders between the accused person and the victim.

Access to treatment for any accused person found not responsible on account of mental disorder would not be affected by the proposed reforms. By the end of the reporting period, the bill was at Second Reading stage in the House of Commons.

Bill C-10: Safe Streets and Communities Act

On 13 March 2012, Bill C-10: Safe Streets and Communities Act (S.C. 2012, c. 1) received Royal Assent, with many provisions of the Act subsequently coming into force during the reporting period in May, June, October and November of 2012, and February 2013. The Act amended laws dealing with many different aspects of the criminal justice system, but its impact on the military justice system is focused in following two areas:

• First, it increases mandatory minimum sentences for a number of sexual offences under the Criminal Code and for serious offences under the Controlled Drugs and Substances Act. These increased mandatory minimum sentences also apply within the military justice system in cases where convictions for the relevant offences result from charges under section 130 of the NDA;
• Further, it amends language and procedures within the Criminal Records Act that deals with pardons for criminal offences. The term “pardon” was replaced by the term “record suspension.” The periods of ineligibility to apply for record suspensions are now lengthened for different classes of offences and certain offences have become ineligible for a record suspension.