Chapter 4: Military Justice: Jurisprudence and Developments
This chapter highlights select jurisprudence from the reporting period, as well as legislative and regulatory developments.
Jurisprudence - Court Martial
Sexual Assault - R. v. Yurczyszyn, 2014 CM 2004, 2005
Major (Maj) Yurczyszyn was the Base Commander of Canadian Forces Base (CFB) Wainwright. After representing CFB Wainwright at Remembrance Day ceremonies, Maj Yurczyszyn consumed alcohol at several locations before attending a house party that evening. He was visibly intoxicated and still in uniform when he arrived, and he continued to drink and conduct himself in an embarrassing manner in the presence of the other officers and civilian guests at the party. Maj Yurczyszyn was introduced to a civilian woman, asked her if she was wearing a padded bra, and touched her breast.
Maj Yurczyszyn was charged with sexual assault (contrary to the Criminal Code and punishable under section 130 of the NDA), and for drunkenness. Maj Yurczyszyn pleaded guilty to the charge of drunkenness, and was found guilty of the charge of sexual assault. He was sentenced to reduction in rank to the rank of Captain.
Desertion - R. v. deJong, 2014 CM 2008
Lieutenant (Navy) (Lt(N)) deJong was serving on HMCS PRESERVER as a Logistics Officer trainee. During a port visit in Florida, Lt(N) deJong sent a letter to his Commanding Officer alleging a “
toxic working relationship” with the ship’s Supply Officer and requesting an immediate repatriation to Halifax. He also visited the ship’s physician assistant and sought a repatriation based on medical grounds. Unhappy with the pace of the decision making process, Lt(N) deJong left the ship in civilian clothing and flew at his own expense back to Halifax where he reported to the military police. Naval authorities reassigned Lt(N) deJong to shore-based duties, where he received strong performance assessments from his new supervisors.
Lt(N) deJong was charged with, and ultimately pleaded guilty to, desertion. At sentencing, the military judge found that even though Lt(N) deJong felt harassed and disrespected on board ship, there were many avenues of redress available to him to deal with these issues. Lt(N) deJong was sentenced to a severe reprimand and a fine in the amount of $5,000.
Conduct - R. v. Miller, 2014 CM 2018
Lieutenant-Colonel (LCol) Miller was charged with 11 offences in connection with wearing various medals and other honours on her uniform without authority. LCol Miller pleaded guilty to three of these charges, and the others were withdrawn. The military judge acknowledged that to some outside the military the matter may seem minor, but stated that it was not. For the military judge, honours only retain their meaning if there is rigour in awarding them and ensuring that they are worn only by those who have earned them. In addition, the offences said much about LCol Miller’s integrity as a senior officer, particularly since they followed previous convictions for dishonesty. On a joint submission, LCol Miller was sentenced to a severe reprimand and a $5,000 fine.
Harassment - R. v. McKenzie, 2014 CM 2016
Ex-Warrant Officer (Ex-WO) McKenzie maintained contact with the complainant after the complainant sought to end their four-year extramarital relationship. Ex-WO McKenzie continued to email the complainant and initiate meetings after being informed that these actions were unwanted and he had been ordered to refrain from contacting her. The complainant reciprocated contact to some degree, and they had a number of consensual intimate encounters. Some of the emails that Ex-WO McKenzie sent to the complainant had a disturbing tone; for example, one had the statement “
I will always haunt you.”
Ex-WO McKenzie was charged with and ultimately pleaded guilty to disobeying a lawful command for his failure to obey the order to refrain from contacting the complainant. He was also charged with criminal harassment (contrary to the Criminal Code and punishable under section 130 of the NDA) and, in the alternative, conduct to the prejudice of good order and discipline for contravening the general CAF-wide orders on harassment. The military judge found him not guilty of criminal harassment as he found that whilst the conduct was unprofessional, it had not caused the complainant to reasonably fear for her own safety. The military judge did, however, find him guilty of conduct to the prejudice of good order and discipline as that charge did not require the complainant have a reasonable apprehension of risk of harm. In sentencing, the military judge underscored the negative effect that harassment has on the CAF, noting that it “
undermines the basics of military discipline and is highly prejudicial to morale, cohesion, and the operational effectiveness of any unit in which it occurs.” Ex-WO McKenzie was sentenced to a severe reprimand and a fine of $3,000.
Fraud - R. v. Parent, 2014 CM 2012
The CAF pays separation benefits to qualifying military personnel who are separated from their spouses for service reasons. In 2009, Caporal (Cpl) Parent changed his marital status and applied for these benefits by submitting documents attesting to the fact that he was in a common law relationship with the woman who had given birth to his child several years earlier, even though they remained separated and were not in a common law relationship. In order to receive these separation benefits, CAF members have to certify each month in writing that they have a dependant and that they have not separated with intent to remain separated during the previous period, which Cpl Parent did for 39 consecutive months. In all, Cpl Parent fraudulently claimed a total of $46,773 in separation benefits.
Cpl Parent pleaded guilty to one count of theft over $5,000 (contrary to the Criminal Code and punishable under section 130 of the NDA), and alternate and related charges were withdrawn. In accepting a joint submission and sentencing Cpl Parent to 90 days’ detention, the military judge emphasized that confidence in the honesty, integrity, discipline, and good judgment of members of the CAF, both by the general public and other military personnel, is critical to the effectiveness of the CAF in the fulfilment of its important functions. The military judge added that the proper functioning of the system of financial benefits relies upon the integrity of those same members.
Jurisprudence - Court Martial Appeal Court
Voyeurism and Possession of Child Pornography - Private Réjean Larouche v. Her Majesty the Queen, 2014 CMAC 6
Private (Pte) Larouche separately took nude photos of a CAF member and a civilian, who had both given their permission provided the photos were destroyed later. After one of the women observed the nude photos of the other at Pte Larouche’s home, she became worried about her own photos and complained to the military police. In the course of the ensuing investigation into voyeurism, a search warrant was obtained from a civilian judge. When the warrant was executed, investigators found a large quantity of child pornography.
At court martial, Pte Larouche was found guilty of voyeurism and possession of child pornography (each contrary to the Criminal Code and punishable under section 130 of the NDA). While the military judge acknowledged the existence of constitutional defects in the search warrant, he admitted the evidence obtained on the basis that failure to admit it would erode public confidence in the military justice system.
Pte Larouche appealed to the Court Martial Appeal Court (CMAC) on two issues. First, he challenged the constitutionality of section 130 of the NDA, which makes Criminal Code offences punishable as military offences. The CMAC found that, although section 130 of the NDA was written in an overbroad way, it was appropriate to read in a requirement for a “
military nexus” to the offence. Read in such a way, the section was not unconstitutional. Second, Pte Larouche argued that the military judge had erred in law in admitting the evidence from the search. Instead of considering the limited impact of admitting the evidence on the reputation of the military justice system, he should have considered the justice system as a whole. The CMAC excluded the evidence, set aside the convictions and entered an acquittal.
Unlawfully Causing Bodily Harm and Negligent Performance of Military Duty - Lieutenant D.W. Watts v. Her Majesty the Queen, 2014 CMAC 9
Captain (Capt) Watts was a platoon commander in Afghanistan under orders to conduct training on the Claymore mine (a command-detonated directional explosive) with his platoon. The Claymore mine was not included in the unit’s pre-deployment training. Given that Capt Watts was not qualified to run a range for the Claymore mine, his superior did not appoint him the Officer-in-Charge (OIC) for the range that day; this position was instead given to a senior non-commissioned member. An accident occurred during the training, resulting in the death of one soldier and several others receiving serious injuries.
At trial, the court martial found Capt Watts guilty of unlawfully causing bodily harm (a Criminal Code offence punishable under section 130 of the NDA) and two charges of negligent performance of a military duty: one for failing to conduct inert round training before proceeding to live fire training, and the other for failing to stop the live fire training once it had begun. The military judge sentenced him to a reduction in rank to Lieutenant and a severe reprimand.
Capt Watts appealed on a number of grounds. The CMAC found that the military judge had made significant errors in his instructions to the court martial panel, including by failing to bring up the implications of another person being OIC of the range. It also found that there were no inert rounds available, so conducting training with inert rounds would have been impossible. It ruled that “
[t]here cannot be an offence that carries significant penalties, of negligently performed duty, that is impossible to perform.”
The CMAC set aside the findings of guilt and directed a new trial on the charge of unlawfully causing bodily harm and the negligent performance of a military duty charge relating to the failure to stop the live fire training. The CMAC set aside the finding of guilt and entered a finding of not guilty on the other negligent performance of a military duty charge relating to the failure to conduct inert round training. The Director of Military Prosecutions decided not to proceed with the unlawfully causing bodily harm and the negligent performance of military duty charges that had been returned for a possible new trial.
Jurisprudence – Supreme Court of Canada
During this reporting period, leave to appeal was granted to accused persons in 3 cases. These cases are: Private Alexandra Vezina v. Her Majesty the Queen12, a traffic in cocaine matter; Second Lieutenant Moriarity, et al v. Her Majesty the Queen, et al.13, a Sexual Exploitation, Sexual Assault and Invitation to Sexual Touching matter; and, Sergeant Damien Arsenault v. Her Majesty the Queen14, a fraud matter. The Supreme Court of Canada (SCC) granted the application for leave to appeal on the constitutionality of section 130(1)(a) of the NDA (which makes Criminal Code offences that take place in Canada punishable as military offences). The question considered by the SCC is whether the CMAC erred in finding that paragraph 130(1)(a) of the NDA is not overbroad as its proper interpretation includes a "military nexus" that ensures the provision is no broader that necessary to achieve the NDA’s purposes.
Leave to appeal by the Director of Military Prosecutions was dismissed without costs in Her Majesty the Queen v. Paul Wehmeier.15
Legislative and Regulatory Developments
Bill C-14: An Act to Amend the Criminal Code and the National Defence Act (Mental Disorder), (Statutes of Canada, 2014, chapter 6)
Bill C-14, which was introduced in November 2013 and received Royal Assent on 11 April 2014, is the successor to Bill C-54, which died on the order paper. Like its predecessor, Bill C-14 addressed concerns raised by victims of crime with respect to accused persons found not criminally responsible (NCR) on account of mental disorder.
The Bill amends both the Criminal Code and the NDA mental disorder regimes. The Bill: (1) explicitly sets out that safety of the public is the “
paramount consideration” in the decision-making process relating to accused persons found to be NRAMD; (2) creates a scheme for finding that certain persons who have been found NRAMD are also “
high-risk accused” to be held in custody and not to be considered for release until the designation is revoked; and (3) enhances the "involvement of victims" in the process concerning mental disorder.
The provisions of Bill C-14 that amend the NDA will come into force at a future day or days that will be determined by the Governor in Council.
Bill C-15: Strengthening Military Justice in the Defence of Canada Act, (Statutes of Canada, 2013, chapter 24)
On June 1, 2014, some provisions of Bill C-15 came into force, resulting in amendments to the NDA that:
- establish the position of the Canadian Forces Provost Marshal (CFPM), define his or her responsibilities and enhance the accountability and transparency of the MP by setting out the legislative framework governing the relationship between the CFPM, the military police and the chain of command;
- provide the Chief of the Defence Staff with the authority, subject to certain limitations, to delegate his or her powers, duties or functions as the final authority in the grievance process;
- enhance the perception of judicial independence by ensuring that an initial authority does not deal with grievances submitted by military judges;
- require the recommendation of an inquiry committee prior to the removal from office for cause of the Director of Defence Counsel Services or the CFPM to enhance the perception of the independence of these offices and ensure that any inquiry is conducted in a fair and independent manner by setting out the powers, rights and privileges of the inquiry committees;
- establish a timeline within which the CFPM is required to resolve conduct complaints and also protects complainants from being penalized for submitting a complaint in good faith; and
- set as seven-year periods the timelines for conducting future independent reviews on the military justice system, the military police complaints process, the role and mandate of the CFPM and the grievance process while taking into account situations where certain provisions of the NDA have been reviewed and amended based on the previous independent review.
Amendments to the Queen’s Regulations and Orders for the Canadian Forces to implement the aforementioned provisions of Bill C-15 came into force on June 1, 2014.
The Sex Offender Information Registration Regulations (Canadian Forces) were also amended on June 1, 2014 to harmonize those regulations with the Bill C-15 changes of terminology concerning the CFPM.
The provisions of Bill C-15 that are not yet in force are related to the operation of the military justice system. They will come into force on a day or days to be fixed by the Governor in Council.
12 Private Alexandra Vezina v. Her Majesty the Queen, 2014 CMAC 4, leave to appeal to SCC granted, 35873 (24 July 2014), while the SCC granted leave to appeal on the constitutional question, the SCC dismissed the application for leave to appeal on the law of entrapment.
13 Second Lieutenant Moriarity, et al. v. Her Majesty the Queen, et al, 2014 CMAC 1, leave to appeal to SCC granted, 35755 (24 July 2014).
14 Sergeant Damien Arsenault v. Her Majesty the Queen, 2014 CMAC 8, leave to appeal to SCC granted, 35946 (11 December 2014), leave to appeal was also granted on section 117(f) of the NDA, which makes criminal certain non-particularized acts “
of a fraudulent nature”.
15 Her Majesty the Queen v. Paul Wehmeier, 2014 CMAC 5, leave to appeal to SCC dismissed, 35933 (30 October 2014).
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