Chapter 4: Military Justice: The Year in Review

This chapter highlights a number of significant decisions at both the court martial and the Court Martial Appeal Court of Canada (CMAC), along with legislative and regulatory developments during the reporting period.

Jurisprudence

Court Martial Decisions

R. v. Brideau

Warrant Officer Brideau was acquitted of two charges under the NDA that related to the mishandling of a 9mm pistol during weapons training in Afghanistan.

One of the charges alleged that the mishandling was an act to the prejudice of good order and discipline contrary to section 129 of the NDA. Even though the wording of the charge specified an "act," the military judge framed the issue as "neglect" to the prejudice of good order and discipline. The military judge’s rationale was that the procedure for clearing a weapon involves a succession of actions, and not only a single act. Consequently, the military judge commented that the choice of the word "act" to deal with failures in the course of a procedure was of no assistance.

The military judge generally agreed with the legal approach set out in R. v. Nauss, which provides that the concept of neglect under section 129 imports the standard of care associated with criminal negligence – a marked departure from the norm.9 In Brideau, the military judge was not satisfied that the facts proved criminal negligence beyond a reasonable doubt. Additionally, the Court concluded that actual prejudice to good order and discipline was probable, but was not proven beyond a reasonable doubt.

In finding the accused not guilty of the alternate charge under section 124, negligent performance of a military duty imposed on him, the military judge held that a general order requiring that deployed personnel complete monthly weapons handling training was not a specific duty within the meaning set forth in the NDA. He then suggested that the circumstances might have been more appropriately addressed through a charge under section 127 of the NDA.

R. v. Stillman

Master Corporal Stillman was drinking after hours with two other CAF members. After a fight arose between Stillman and one of these members, Stillman went home, retrieved his registered personal firearm and fired two shots. The first shot hit one member in the leg and the second shot narrowly missed the second member. A court martial found Stillman guilty of five NDA s. 130 service offences, namely: discharging a firearm with intent, discharging a firearm recklessly, aggravated assault, using a firearm in the commission of an offence and possession of a loaded restricted firearm. Stillman was sentenced to imprisonment for a period of six years and dismissal from Her Majesty’s service. The Court ordered the taking of a DNA sample, a weapons prohibition and forfeiture of the seized weapon.

This decision is under appeal.

R. v. Wilks

Ex-Petty Officer 2nd Class Wilks was charged with ten service offences punishable under section 130 of the NDA for sexual assault contrary to section 271 of the Criminal Code, and with sixteen offences punishable under section 130 of the NDA for breach of trust contrary to section 122 of the Criminal Code.

As a medical assistant, one of Mr. Wilks’ duties was to perform health examinations for potential new recruits and CAF members. The Court held that during these examinations, he performed breast exams on sixteen women that were not required and that he was not authorized to conduct.

Mr. Wilks was convicted on ten counts of sexual assault and on fifteen counts of breach of trust. In passing sentence, the Court considered the military context and the nature of the offender’s position in which the abuse took place as aggravating factors and imposed a sentence of 30 months imprisonment.10

Court Martial Appeal Court Decisions

R. v. Courneyea

Corporal Courneyea was charged under section 130 of the NDA with three offences contrary to the Criminal Code: assault with a weapon, pointing a firearm and uttering threats. Regarding the first charge, the court martial found him not responsible on account of mental disorder (NRAMD) based on a finding that he had suffered from post traumatic stress disorder at the time of the alleged offence. On the second and third charges, the member was found not guilty. The Court Martial Appeal Court of Canada (CMAC) dismissed the appeal, upholding the NRAMD finding.

Moriarity v. R. and Hannah v. R.

Second Lieutenant Moriarity was convicted under section 130 of the NDA with four offences contrary to the Criminal Code: two relating to sexual exploitation, a third for sexual assault and a fourth offence for invitation to sexual touching. Sapper Hannah was charged with two offences punishable under section 130 of the NDA, contrary to the Controlled Drugs and Substances Act and the Food and Drugs Act for the trafficking and unlawful selling of a controlled substance. Paragraph 130(1)(a) makes an act or omission that is punishable under federal legislation, such as the Criminal Code or the Controlled Drugs and Substances Act, a service offence under the Code of Service Discipline (CSD). Their appeals were heard together.

Among other things, the appellants Moriarity and Hannah argued that their liberty rights under section 7 of the Canadian Charter of Rights and Freedoms were violated. The appellants submitted that by incorporating civil offences to the CSD, such as those in the Criminal Code, that are unrelated to military service, paragraph 130(1)(a) employs an unconstitutionally broad means to achieve its purpose: enforcing discipline, efficiency and morale in the CAF.

In dismissing the appeal, the Court found that paragraph 130(1)(a) was not overbroad. The Court held that properly interpreted, paragraph 130(1)(a) included a "military nexus" that ensures the provision is no broader than necessary to achieve the NDA’s purpose. In terms of outlining what constitutes a "military nexus", the Court cited with approval a concurring judgment from the Supreme Court of Canada in R. v. McKay that stated a military nexus exists if “the offence is so connected with the [military] service in its nature, and in the circumstances…it would tend to affect the general standard of discipline and efficiency of the service.11 The Court cautioned, however, that it is not possible to list all circumstances in which there would be a military nexus; therefore, it must be determined on a case-by-case basis.

The appellants sought permission to appeal the decision to the Supreme Court of Canada.

Vézina v. R.

This appeal concerned a decision of a Standing Court Martial dismissing an application for a stay of proceedings on the basis of entrapment by the Military Police. It also dealt with a question as to whether paragraph 130(1)(a) of the NDA is overbroad and contrary to section 7 of the Charter.

The Court dismissed the appeal. On the question of entrapment, the CMAC found that the actions of the Military Police were proper. In terms of whether paragraph 130(1)(a) of the NDA is overbroad, the panel stated that is was bound to follow the Court’s previous decision in Moriarity v. R. as the appellant had not discharged the evidentiary burden of showing manifest error on the part of the Court.

R. v. Wehmeier

Mr. Wehmeier, a civilian accompanying a unit of the Canadian Armed Forces in Germany, was charged under section 130 of the NDA contrary to three Criminal Code offences, namely, sexual assault, uttering threats, and assault.

At court martial, the military judge found that the proceedings against Mr. Wehmeier amounted to an abuse of process on the grounds that included: the Director of Military Prosecutions’ (DMP) denial of Mr. Wehmeier’s request to transfer the matter to civilian authorities; and DMP’s refusal to disclose further information with regard to the rationale behind the decision to continue the prosecution in the military justice system. The court martial terminated the proceedings. The decision was appealed.

In dismissing the appeal, the CMAC rejected the court martial’s conclusion that there had been an abuse of process in the exercise of the DMP’s prosecutorial discretion. The Court stated that the decision to prefer charges and the decision to continue with a Standing Court Martial in the military justice system came within the core of prosecutorial discretion.

The Court then determined that the prosecution of Mr. Wehmeier in the military justice system was arbitrary as it lacked any connection with the objectives sought to be achieved by making civilians accompanying CAF units subject to the CSD. The Court found that Parliament’s objective in enacting the provisions of the NDA that retained primary jurisdiction over civilians who accompany a unit of the CAF is to protect their interests and have them tried according to Canadian law and not according to foreign penal law. Given that Mr. Wehmeier was repatriated to Canada within 5 days after the occurrence of the alleged offences, the Court stated that his prosecution in the military courts was not necessary to protect him from foreign penal jurisdiction.

The Court determined that the effect of prosecuting Mr. Wehmeier in the military justice system had a disproportionate effect on him relative to the state’s interest in the proceeding due to a loss of certain procedural rights if he was tried under the CSD as opposed to the Criminal Code. The Court concluded that the prosecution violated the principles of fundamental justice protected by section 7 of the Charter and that the appropriate remedy was termination of the proceedings without adjudication.

Legislative Initiatives

Bill C-15: Strengthening Military Justice in the Defence of Canada Act

The Strengthening Military Justice in the Defence of Canada Act, S.C. 2013, c. 24, which was introduced in October 2011, received Royal Assent on 19 June 2013. This important and comprehensive legislative initiative represents the most significant amendments to the NDA since 1998. Bill C-15 is the Government’s legislative response to the recommendations made by the former Chief Justice of Canada, the Right Honourable Antonio Lamer, in his 2003 independent report on the provisions and operation of Bill C-25. Bill C-15 also addressed the recommendation put forth by the Standing Senate Committee on Legal and Constitutional Affairs following a study of Bill C-60, which responded to a decision issued by the Court Martial Appeal Court.12

The amendments in Bill C-15 continue the process of ongoing improvements to the military justice system, the military police complaints process and the grievance process by:

  • further enhancing the independence of military judges;
  • expressly providing the purposes, principles and objectives of sentencing in the military justice system;
  • expanding the pool of Canadian Armed Forces members eligible to serve on a court martial panel;
  • amending the limitation period for summary trials to require the charge to be laid within six months of the alleged offence and to allow an accused person to waive the limitation periods;
  • providing for additional sentencing options, including absolute discharges, intermittent sentences and restitution orders, as well as the ability to submit victim impact statements at courts martial;
  • permitting the appointment of part-time military judges, should the need arise as a result of mobilization or other unforeseen circumstances;
  • improving the efficiency of the grievance and military police complaints processes; and
  • setting out the duties and functions of the Canadian Forces Provost Marshal and specifying the Provost Marshal’s responsibilities.

Certain provisions of the bill came into force on 19 June 2013 and 18 October 2013 respectively. The remaining provisions of Bill C-15 will come into force at a future day or days that will be determined by the Governor in Council.


Footnotes

9 2013 CM 3008.

10 Ex-PO2 Wilks was found guilty during the reporting period (15 November 2013) and was sentenced on 28 April 2014. Mr. Wilks was previously found guilty of one count of sexual assault and four counts of breach of trust by a public officer, and sentenced to nine months in prison in December 2011.

11 MacKay v. The Queen, [1980] 2 S.C.R. 370.

12 Trépanier v. R. (2008) CMAC 3.

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