Chapter Four: Military Justice: Jurisprudence and Developments

This chapter highlights key jurisprudence with broad impact from the reporting period, as well as legislative and regulatory developments.

Jurisprudence – Supreme Court of Canada

Offence Punishable by Non-military Law – R. v. Moriarity, 2015 SCC 55

Second Lieutenant Moriarity, Private Hannah, Private Vezina, and Sergeant Arsenault were each convicted at courts martial of having committed unrelated offences punishable under the Criminal Code, the Controlled Drug and Substances Act and the Food and Drugs Act pursuant to paragraph 130(1)(a) of the NDA. Paragraph 130(1)(a) of the NDA incorporates all offences under the Criminal Code or any other Act of Parliament into the military justice system as "service offences" triable within the military justice system.

All four members appealed to the Court Martial Appeal Court on constitutional grounds, arguing that paragraph 130(1)(a) of the NDA was overly broad to achieve its purpose of enforcing discipline, efficiency and morale in that it incorporates civilian offences unrelated to military service into the Code of Service Discipline. The Court Martial Appeal Court, in a series of decisions, determined that properly interpreted, paragraph 130(1)(a) of the NDA incorporates a requirement for a military nexus to the offence, which exists when there is a direct link to the circumstances of an alleged offence and the discipline, efficiency or morale of the military¹⁶. As such a nexus existed in each of the appellants cases, the convictions were upheld. The offenders appealed to the Supreme Court of Canada.

In a unanimous decision, the Supreme Court of Canada dismissed all four appeals and held that there is no requirement for a military nexus in order for paragraph 130(1)(a) of the NDA to be consistent with the Charter. The Court reasoned that the effect of paragraph 130(1)(a) is to extend the jurisdiction of service tribunals in relation to all underlying federal offences to everyone subject to the Code of Service Discipline. There is nothing explicitly in the text of paragraph 130(1)(a) to suggest that the offence must have been committed in a military context. Instead, it transforms the underlying offence into a service offence “irrespective of its nature and the circumstances of its commission”.

The Court explained that there was no apparent intent in the NDA to limit the application of these provisions to situations in which there is a "direct link" between the circumstances of the offence and the military. Had Parliament intended otherwise, it could have provided for a narrower application of the Code of Service Discipline. It must therefore be concluded that Parliament turned its mind to the circumstances in which it is appropriate to subject members of the CAF to the military justice system.

In upholding the constitutionality of paragraph 130(1)(a), the Court held that the purpose of the military justice system is “to provide processes that would assure the maintenance of discipline, efficiency and morale of the military,” and that criminal conduct “even when committed in circumstances that are not directly related to military duties, may have an impact on the standard of discipline, efficiency and morale.” The behaviour of members of the military relates to discipline, efficiency and morale even when they are not on duty, in uniform, or on a military base.

This is an important decision as during the 2015/16 reporting period, approximately 27 percent of charges tried by courts martial were under paragraph 130(1)(a) of the NDA. Accordingly, the ability to deal with offences under paragraph 130(1)(a) is significant to users of the military justice system.

Jurisprudence – Court Martial Appeal Court

Minister of National Defence’s Right to Appeal – R. v. Cawthorne, 2015 CMAC 1

Ordinary Seaman Cawthorne was a crew member serving aboard HMCS Algonquin. While on exercise a cell phone containing child pornography was discovered on board the ship. The phone belonged to Ordinary Seaman Cawthorne who admitted to possessing pornography, but denied that it was child pornography. Ordinary Seaman Cawthorne was found guilty of possessing and accessing child pornography contrary to the Criminal Code and punishable under section 130 of the NDA.

Ordinary Seaman Cawthorne appealed to Court Martial Appeal Court where a majority of the judges hearing his appeal directed that there be a new trial on the two charges laid against Ordinary Seaman Cawthorne. The DMP filed a notice of appeal to the Supreme Court of Canada and shortly thereafter, Ordinary Seaman Cawthorne filed a notice of motion to quash the notice of appeal from the Minister on the grounds that the authority of the Minister to appeal to the Supreme Court of Canada found at paragraph 245(2) of the NDA violated sections 7 and 11(d) of the Charter in that the Minister is not an independent prosecutor with sufficient autonomy to act in that capacity. The Supreme Court of Canada granted leave to appeal and the matter was heard on April 25, 2016. A decision on the matter has been reserved.

Minister of National Defence’s Right to Appeal – R. v. Gagnon and Thibault, 2015 CMAC 2

These cases involved two military members who were charged with unrelated sexual assault offences. At courts martial Warrant Officer Gagnon was acquitted and the proceedings against Corporal Thibault were terminated. The Crown appealed both of these court martial decisions.

Counsel for the accused persons applied to have the appeals dismissed on the grounds that the right to appeal must be attributed to an independent prosecutor and that it is contrary to section 7 of the Charter to confer the right to appeal on the Minister.

The Court Martial Appeal Court found that the Minister’s role and duties under the NDA are inconsistent with the exercise of his authority concerning a prosecution against one of his own "employees". It held that the Minister cannot reasonably be perceived as an independent prosecutor who can act in a manner that is autonomous and independent from the chain of command, because he or she is at the apex of it. The court declared that section 230.1 of the NDA, which confers on the Minister the right to appeal, does not satisfy the constitutional requirement of prosecutorial independence and, therefore is of no force and effect. The court suspended this declaration of invalidity for a period of six months from the date of the decision, but declined to grant the accuseds’ applications to dismiss the Minister’s appeals as that would be disproportionate to the societal interest in a determination of the merits of the appeals.

In partially concurring reasons, Chief Justice Bell expressed the view that the Minister had to maintain a supervisory power over prosecutions in the Canadian military justice system, a power that had to be limited by parameters similar to those on the Attorney General in the Director of Public Prosecutions Act.

The Crown sought leave to appeal the decision to the Supreme Court of Canada. Leave to appeal was granted and the case was heard jointly with R. v. Cawthorne on April 25, 2016. A decision on the matter has been reserved, and the Court Martial Appeal Court’s declaration of invalidity will remain suspended until the Supreme Court’s decision.

Jurisprudence – Court Martial

Sexual Offences – R. v. Morgan, 2015 CM 4005

Sergeant Morgan was a medical technician charged with having sexually harassed three subordinates on different occasions between 2005 and 2012. The victims experienced various forms of flirting, repetitive requests for dates and personal relationships and over-the-clothing touching of their buttocks. The circumstances of the offences were found to demonstrate a pattern of sexually harassing behaviour towards three of Sergeant Morgan’s female subordinates.

Sergeant Morgan pleaded guilty at court martial to three charges of conduct to the prejudice of good order and discipline, contrary to section 129 of the NDA. He was sentenced to a severe reprimand and a fine of $2,000.

Sexual Offences – R. v. Scott, 2015 CM 1005

At the time of the offence, Officer Cadet Scott was a student at the Royal Military College of Canada in Kingston. In March of 2013, Officer Cadet Scott was, on two separate occasions, alleged to have inappropriately touched the complainant and to have made sexually suggestive comments to her. He touched, without her consent, various parts of the complainant’s upper body.

Officer Cadet Scott pleaded guilty to one charge of assault under section 266 of the Criminal Code, an offence punishable under section 130 of the NDA and two counts of conduct to the prejudice of good order and discipline under section 129 of the NDA for sexual harassment. Following a joint submission on sentence, the court sentenced the offender to a severe reprimand and a fine in the amount of $2,000 payable in $200 equal monthly instalments.

Fraud - R. v. Jackson, 2015 CM 4012

Master Corporal Jackson, a member of the Regular Force, was issued a DND credit card for the purchase of fuel in connection with his employment. He was informed that the credit card was for the sole use of fuel purchases as required in the course of his regular military duties. In January 2011, due to financial hardship, Master Corporal Jackson started using the credit card for personal fuel purchases. The total amount spent by Master Corporal Jackson for his personal benefit through the use of the credit card was approximately $20,000.

Master Corporal Jackson pleaded guilty to one charge under paragraph 117(f) of the NDA for having committed an act of a fraudulent nature. Following a joint submission by both prosecution and defence, the court sentenced the offender to detention for a period of 60 days. In the court’s opinion, the period of detention was within the appropriate range given that the accused indicated his intent to plead guilty at the earliest opportunity, that he was a first-time offender and that he cooperated with the investigators throughout the investigation.

Fraud – R. v. Boire, 2015 CM 4010

Master Seaman Boire was a cook in the regular force and during two different postings to CFB Petawawa in 2009 and to CFB Borden in 2013, he claimed separation expense benefits without entitlement.¹⁷ Master Seaman Boire fraudulently received over $48,000 in total. At court martial Master Seaman Boire pleaded guilty to two counts of fraud pursuant to subsection 380(1) of the Criminal Code, contrary to section 130 of the NDA. He was sentenced to imprisonment for a period of 60 days and to a fine of $2,400. In addition to the sentence, Master Seaman Boire is in the process of reimbursing the Crown for the funds fraudulently obtained.

At sentencing the accused argued that as a result of his several medical conditions, that his sentence of imprisonment should be suspended. Evidence was presented at sentencing to indicate that his incarceration would be counter therapeutic and would have a negative effect on his well-being and mental health. As a result, the prosecution and defence jointly recommended that the period of imprisonment be suspended. Taking into account the exceptional circumstances in this case the military judge determined that the period of imprisonment should be suspended.

Conduct to the Prejudice of Good Order and Discipline - R. v. Korolyk, 2016 CM 1002

Leading Seaman Korolyk was living in Victoria, BC and was entitled to a Post Living Differential (PLD).¹⁸ However, she did not disclose that she was jointly occupying a home with another service member and was therefore only entitled to 75 percent of her PLD allowance. Leading Seaman Korolyk was charged with one count of conduct to the prejudice of good order and discipline pursuant to section 129 of the NDA as a result of failing to report the domestic event relevant to her PLD allowance. Alternatively, she was also charged for an act of a fraudulent nature contrary to paragraph 117(f) of the NDA.

At her court martial, Leading Seaman Korolyk challenged the constitutionality of subsection 129(2) of the NDA. She argued that subsection 129(2) of the NDA, which requires a trier of fact to find the existence of prejudice to good order and discipline where the alleged act contravened any provision of the NDA, any regulation, order or instruction is contrary to the Charter since it dispenses with the requirement to prove prejudice to good order and discipline beyond a reasonable doubt.

The military judge agreed with Leading Seaman Korolyk and found that subsection 129(2) of the NDA violated the presumption of innocence protected by the Charter. He declared the provision to be void insofar as it makes an accused liable to be convicted despite the existence of a reasonable doubt on that essential element of the offence. As a result the prosecution withdrew the charge pursuant to section 129. The court found Leading Seaman Korolyk not guilty of the remaining alternative charge.

Conduct – R. v. Buckley, 2016 CM 1001

Master Warrant Officer Buckley was the Wing Superintendent Clerk of 19 Wing Comox. In this job she was responsible for overseeing the 35 clerks working across the Wing and the Base and, among other duties, was the non-commissioned member appointed as the Personnel Evaluation Report Monitor. This position gave her privileged access to the CAF’s personnel management software, known as the Human Resources Management System (HRMS).

In 2014, Master Warrant Officer Buckley used the password of a co-worker to enter HRMS and change her personal record indicating that she had passed the FORCE fitness test, when this was not true. She then perpetuated the inaccuracy to her chain of command by stating that she had completed her FORCE test. Master Warrant Officer Buckley made the false entry into HRMS, knowing that it would be relied upon for her next Performance Evaluation Report, which would be used for promotion purposes, as well as for verifying her readiness prior to a deployment to Canadian Forces Station Alert.

Master Warrant Officer Buckley pleaded guilty to two offences under section 125 of the NDA for altering a document with intent to deceive and wilfully making a false entry in a document. The court martial found that Master Warrant Officer Buckley abused the trust and confidence vested in her rank and position and sentenced her to a severe reprimand and a fine of $3,000.

Desertion and Commanding Officers Arrest Warrants – R. v. Levi-Gould, 2016 CM 4002

On 7 January 2014, following his period of Christmas leave, Ordinary Seaman Levi-Gould failed to report for duty as required. A warrant for Ordinary Seaman Levi-Gould’s arrest was issued by his commanding officer that authorized the arrest of Ordinary Seaman Levi-Gould within a dwelling house. A subsequent warrant for arrest was issued to reflect the fact that the member had been charged with desertion and disobedience of a lawful command but did not authorize the arrest of Ordinary Seaman Levi-Gould within a dwelling house. On 1 April 2015, Ordinary Seaman Levi-Gould was arrested by the RCMP for unrelated alleged criminal offences. He was released on conditions by a provincial court judge and was subsequently arrested by the military police at the courthouse pursuant to the second warrant issued by his commanding officer.

At court martial, Ordinary Seaman Levi-Gould argued that subsection 157(1) of the NDA, the provision that allows a commanding officer to issue an arrest warrant, was unconstitutional on the grounds that an arrest warrant must be authorized by a person capable of acting judicially and that commanding officers are incapable of acting judicially as they are neither impartial nor independent.

The military judge determined that subsection 157(1) of the NDA does not provide for any limit as to when a commanding officer may exercise his or her power to authorize a warrant into a dwelling house. In his view, a commanding officer is so involved in the investigatory functions performed by members of his or her unit that he or she cannot act in a judicial capacity when authorizing an arrest warrant under subsection 157(1). The military judge found that subsection 157(1) of the NDA violated sections 7 and 8 of the Charter and made a declaration of invalidity pursuant to subsection 52(1) of the Charter.

Despite the finding that s.157(1) of the NDA was unconstitutional, the court determined that the individual Charter rights of the accused were not violated. The accused pleaded guilty to the charges of desertion and disobedience of a lawful command. At sentencing the court took note of a number of challenges that the accused was facing at the time of the commission of the offences as well as the difficult background of the accused and sentenced him to a severe reprimand. Ordinary Seaman Levi-Gould had been released from the CAF on 16 October 2014 and administrative action was taken to suspend his pay during his period of absence without leave.

Legislative and Regulatory Developments

Bill C-71: An Act to amend the National Defence Act and the Criminal Code

On June 15, 2015, the Minister introduced Bill C-71, An Act to amend the National Defence Act and the Criminal Code (Victims Rights in the Military Justice System Act), in the House of Commons and it was given first reading.

Bill C-71 would have amended provisions of the NDA governing the military justice system. It would have added, among other things, a "Declaration of Victims Rights" granting victims of service offences the rights to information, protection, participation and to seek restitution in respect of service offences in much the same way as the Canadian Victims Bill of Rights grants these rights to victims of certain criminal offences within the civilian criminal justice system.

Bill C-71 would have also made a number of changes to the processes through which service offences are dealt with under the Code of Service Discipline, mostly at courts martial, in order to give effect to the Declaration of Victims Rights. For instance, the Bill would have authorized, and in some cases would have required, military judges to make orders for the protection of victims, including no-contact orders, publication bans, orders permitting a witness to have a support person present while testifying, and orders prohibiting an accused person from personally cross-examining a witness.

Additionally, Bill C-71 would have altered the summary trial process to clearly establish summary trials as an effective form of non-criminal, non-penal service tribunal for the purpose of dealing with minor service misconduct. Specifically, the Bill would have eliminated summary trial jurisdiction to try service offences, and would have replaced it with jurisdiction to try only a new class of "disciplinary infractions" that would be created in regulations made by the Governor in Council. The Bill would also have eliminated a summary trial presiding officer’s authority to impose punishments (such as detention and fines), and would have replaced it with authority to impose new disciplinary sanctions that were non-criminal and non-penal in character.

The Bill died on the order paper when Parliament was dissolved on August 2, 2015.