Chapter Three — Military Justice: Jurisprudence, Developments and Policy Initiatives
This chapter highlights some jurisprudence from the reporting period. During the reporting period, two cases concerning the military justice system were appealed to the Supreme Court of Canada and are expected to be heard during the next reporting period. The Court Martial Appeal Court rendered a decision in 14 appeal cases, while at the end of the current reporting period there were three ongoing appeals at the Court Martial Appeal Court.
Upcoming Appeals to the Supreme Court of Canada
Right to a jury trial pursuant to section 11(f) of the Canadian Charter of Rights and Freedoms
R v Déry, 2017 CMAC 214
This decision involved 11 appeals in which individuals were charged with or found guilty of service offences contrary to section 130 of the National Defence Act.15 The appellants argued that paragraph 130(1)(a) of the National Defence Act violated their right to a jury trial pursuant to section 11(f) of the Canadian Charter of Rights and Freedoms (Charter). Section 11(f) of the Charter provides that anyone charged with an offence has the right to the benefit of a trial by jury where the maximum punishment for the offence is imprisonment for five years or more, except in the case of an offence under military law tried by military tribunal. The Court Martial Appeal Court had previously ruled in R v Royes, 2016 CMAC 1, that section 130 of the National Defence Act was an offence under military law without resort to a military nexus test, and therefore the exception to the right to a jury trial applied.
In Déry, the Court Martial Appeal Court was unanimous that it was bound by its previous decision in Royes. However, Justices Cournoyer and Gleason wrote extensive reasons why they would have found that section 130 of the National Defence Act, absent a military nexus test, violated the right to a jury trial under section 11(f) of the Charter. Chief Justice Bell wrote separate reasons in support of the unanimous decision in Royes. The Supreme Court of Canada granted leave to appeal this decision on 8 March 2018.
Defence of honest but mistaken belief in consent
R v Gagnon, 2018 CMAC 1
Warrant Officer Gagnon is one of the parties to the appeal to the Supreme Court of Canada in Déry concerning section 11(f) of the Charter. However, this specific case involved a challenge to the military judge’s decision to put the defence of honest but mistaken belief to the General Court Martial panel. Warrant Officer Gagnon was acquitted of one count of sexual assault.
The Court Martial Appeal Court found that the military judge erred in law by submitting to the court martial panel a defence of honest but mistaken belief in consent without having considered whether the statutory preconditions in paragraph 273.2(b) of the Criminal Code had been met, that is, whether Warrant Officer Gagnon had taken reasonable steps in the circumstances known to him at the time to confirm consent to the sexual activities in question. The majority concluded that a judge applying the proper legal framework would likely consider that reasonable steps had not been taken, and would therefore have denied the defence of honest but mistaken belief in consent. On this basis, the majority overturned the acquittal and ordered a new trial.
The Chief Justice, in dissent, concluded that there was evidence of reasonable steps and an air of reality to the defence of honest but mistaken belief on the facts of the case sufficient to put the defence to the panel, and therefore there was no error.
Warrant Officer Gagnon has appealed this decision as of right to the Supreme Court of Canada.
Court Martial Appeal Court Decisions
Obstructing a peace officer and conduct to the prejudice of good order and discipline
R v Golzari, 2017 CMAC 3
On 26 October 2014, Corporal Golzari was attempting to gain access to Canadian Forces Base (CFB) Kingston by car when he was stopped at the gate. The security posture at CFB Kingston had been elevated due to the recent killing of two Canadian Armed Forces members. A member of the Base Auxiliary Security force asked Corporal Golzari to show his military identification card and to provide his destination on base. When Corporal Golzari refused to comply the Military Police were called. Corporal Golzari refused to comply with the direction of the Military Police and was subsequently placed under arrest.
Corporal Golzari was charged with three offences: behaving with contempt toward a superior officer; obstructing a peace officer; and, conduct to the prejudice of good order and discipline. At his court martial, on his own motion, the military judge questioned whether a prima facie case had been made out against Corporal Golzari on the grounds that there was no evidence to indicate that there was a standard of conduct requiring the accused to provide his destination when entering the base. The military judge found that the prosecution had failed to lead any evidence that Corporal Golzari knew that the member of the Military Police he was interacting with was a peace officer, or any evidence that there was a standard of conduct that had been breached by Corporal Golzari. The military judge entered a finding of not guilty on all charges. The Director of Military Prosecutions appealed the decision.
The Court Martial Appeal Court unanimously concluded that the military judge erred in this determination.
The Court Martial Appeal Court noted that Military Police are always peace officers in relation to persons subject to the Code of Service Discipline and that the knowledge component of the offence was complete when Corporal Golzari knew he was dealing with a member of the Military Police.
With respect to the charge related to conduct to the prejudice of good order and discipline, the Court Martial Appeal Court found that the prosecution is not required to prove a separate standard of conduct. The offence prohibits any conduct that is prejudicial to good order and discipline. The element of prejudice requires conduct that tends to, or is likely to, adversely affect good order and discipline. The Court Martial Appeal Court noted that, in most cases, the trier of fact should be able to conclude whether the proven conduct is prejudicial to good order and discipline based on their experience and general service knowledge.
The Court Martial Appeal Court allowed the appeal and ordered a new trial.
Principle of police independence
R v Wellwood, 2017 CMAC 4
Major Wellwood is also one of the parties to the appeal to the Supreme Court of Canada in Déry concerning section 11(f) of the Charter. However, this case involved a challenge to the military judge’s instructions to the General Court Martial panel. Major Wellwood was convicted of obstructing a peace officer. The incident occurred when a corporal from the Military Police attended the command post location under Major Wellwood’s responsibility in response to a 911 call regarding a possibly suicidal soldier. A confrontation ensued between Major Wellwood and the member of the Military Police, each of whom refused to cooperate with the other.
The Court Martial Appeal Court concluded that the military judge’s instructions to the panel were needlessly complex, and failed to properly relate the evidence to the law. The Court Martial Appeal Court further concluded that the military judge failed to adequately address Major Wellwood’s competing obligations toward the suicidal soldier and to what degree those obligations informed what was a reasonable and necessary exercise of police powers in the circumstances.
The Court Martial Appeal Court confirmed that the principle of police independence applies to members of the Military Police in the exercise of their law enforcement duties during their interactions with the chain of command. Military Police are not required to obey the orders of superior officers when those orders conflict with the exercise of their police duties.
The Court Martial Appeal Court overturned the conviction and ordered a new trial.
R v Hoekstra, 2017 CMAC 5
Corporal Hoekstra pled guilty to possession of marijuana, possession of explosives, possession of prohibited devices, and receiving property obtained by the commission of a service offence. The prosecution recommended a sentence of 18 months imprisonment and dismissal from Her Majesty’s service. Defence counsel suggested a suspended sentence of 30-90 days detention, a severe reprimand and a significant fine. The military judge sentenced Corporal Hoekstra to 60 days imprisonment.
The Court Martial Appeal Court unanimously concluded that the sentence was demonstrably unfit, and that an appropriate sentence was 14 months imprisonment. The Court found the military judge had not appropriately weighed the aggravating factors against the mitigating factors and had failed to properly consider other sentences for similar offences in determining the sentence. Upon the admission of fresh evidence of Corporal Hoekstra’s rehabilitative efforts and good conduct, and with the agreement of the Director of Military Prosecutions, the Court Martial Appeal Court stayed the remaining period of imprisonment.
Ongoing Appeals at the Court Martial Appeal Court at the End of the Reporting Period
Charge-layer did not have an actual belief that the accused committed the alleged offence
R v Edmunds, 2017 CM 3016
Master Corporal Edmunds ran a fraudulent scheme whereby he contracted on behalf of the Canadian Armed Forces with a company of which he was the sole owner. After pleading guilty to one count of fraud over $5000 involving two fraudulent transactions, he was charged with several additional counts of fraud which resulted in a second trial. He was sentenced to 30 days imprisonment at his first trial. At his second trial, Master Corporal Edmunds argued that the conduct of the investigators and prosecution was abusive, mainly because the prosecution had improperly split its case. The issues at appeal arose from this second trial.
During a pre-trial disclosure and abuse of process application, the charge-layer testified that he did not know any information about the alleged offences. He had been presented with a Record of Disciplinary Proceedings containing a number of charges and had simply signed it. The military judge found that the charge-layer did not have an actual and reasonable belief that an offence had been committed, incorporating this finding into his decision on the abuse of process.
In his decision on the abuse of process, the military judge found that the prosecution had not acted in bad faith or maliciously, but concluded that subjecting Master Corporal Edmunds to two trials was an abuse of process. The military judge concluded that the prejudice arising from this abuse was the possibility that Master Corporal Edmunds would be subjected to two separate periods of incarceration. He concluded that this prejudice could be remedied through mitigation of sentence.
Master Corporal Edmunds appealed the military judge’s refusal to grant a stay of proceedings. After a review of the appeal record, the Director of Military Prosecutions agreed that the error at the charge laying stage was fatal to the charges and that the Court Martial had therefore been without jurisdiction. This vitiated the proceedings and required the Court Martial Appeal Court to quash the conviction. The Court Martial Appeal Court agreed, declaring the court martial a nullity and overturning the conviction.
The Court Martial Appeal Court rendered a decision from the bench with written reasons expected in the next reporting period.
Right to a jury trial pursuant to section 11(f) of the Charter
R v Beaudry, 2016 CACM 2
On 30 January 2018, the Court Martial Appeal Court heard constitutional arguments as to whether paragraph 130(1)(a) of the National Defence Act violates the right to a jury trial pursuant to section 11(f) of the Charter. The Court Martial Appeal Court has reserved its decision.
R. v. Cadieux, 2017 CM 3008
Corporal Cadieux was charged with one offence for having allegedly committed a sexual assault, and one offence of drunkenness while deployed on an exercise in Jamaica in November 2015.
Corporal Cadieux was acquitted at a Standing Court Martial of sexual assault and drunkenness. The Director of Military Prosecutions appealed the acquittal on the basis that the military judge erred in his assessment of the defence of honest but mistaken belief in consent, in his assessment of witness credibility and in his interpretation of the offence of drunkenness under section 97 of the National Defence Act.
The Court Martial Appeal Court heard oral arguments in this case on 12 March 2018 and reserved its decision.
Upcoming Appeal to the Court Martial Appeal Court
Behaved in a disgraceful manner and conduct to the prejudice to good order and discipline
R v Bannister, 2018 CM 3003
Captain Bannister was the Commanding Officer of 148 Royal Canadian Army Cadet Corps Charlottetown, Prince Edward Island. He was charged with three offences for having allegedly behaved in a disgraceful manner contrary to section 93 of the National Defence Act. Alternately he was charged with three offences for conduct to the prejudice of good order and discipline contrary to section 129 of the National Defence Act for inappropriate sexual comments made in the workplace.
The prosecution told the Court that if it did not find Captain Bannister guilty by using the deeming provision of subsection 129(2) of the National Defence Act, it could still go on to do an analysis of the evidence on the essential element of prejudice provided at subsection 129(1) of the National Defence Act and it made further reference to the Court Martial Appeal Court decision in Golzari (referring to the trier of fact being able to rely on their experience and general service knowledge). On that issue, the trial judge agreed with the comments of the military judge in the decision of R v Rollman, 2017 CM 2005, on the extent to which it is appropriate for a trier of fact to rely on their experience or general service knowledge to determine whether or not something is, or likely to be, prejudicial to good order and discipline.
Captain Bannister was acquitted on all counts. The Director of Military Prosecutions appealed the acquittal on the basis that the military judge erred in his interpretation of the offence of disgraceful conduct and erred in his interpretation of prejudice to good order and discipline. The Notice of Appeal was filed on 29 March 2018.
Court Martial Decisions
Appropriate interpretation of a trier of fact relying on experience and general service knowledge regarding what constitutes conduct to the prejudice of good order and discipline
R v Rollman, 2017 CM 2005
Corporal Rollman, a reservist, working as a military cook at 5 Canadian Division Support Base Detachment Aldershot was found not guilty of three offences namely: one count of striking a superior officer, contrary to section 84 of the National Defence Act and two counts of conduct to the prejudice of good order and discipline, contrary to section 129 of the National Defence Act.
Following a comment made by Corporal Rollman to a civilian employee, which the employee regarded as a racial slur, Corporal Rollman’s supervisor advised Corporal Rollman that a complaint had been made against him. During this interaction Corporal Rollman struck Sergeant Smith.
The Court found Corporal Rollman believed on reasonable grounds that force was about to be used by Sergeant Smith and that he slapped away Sergeant Smith’s hand to defend and protect himself against Sergeant Smith’s first use of force, which was reasonable.
To assess whether the conduct in question resulted in prejudice to good order and discipline, the Court referred to the decision in R v Golzari. In that decision the Court Martial Appeal Court stated that a trier of fact, relying on military experience and general service knowledge could determine whether "conduct tended to adversely affect good order and discipline."
In the view of the Court, if a trier of fact wishes to rely upon such experience and knowledge, it must be done in accordance with the law of evidence. The concern raised by the court was:
"... the uncertainty that exists if the trier of fact relies upon his or her own subjective experience and general service knowledge in order to infer an essential element of an offence. An accused cannot be left in the unfair position of having to speculate on what fact, matter, custom or general military knowledge as evidence that the trier of fact might rely upon in order to convict him. An accused must have all the legal evidence adduced before him in court to ensure that he is given the opportunity to meet, explain or contradict this evidence and to determine on what grounds he should argue his defence. […] the trier of fact must be careful to limit it to matters of general knowledge or facts known to the "ordinary" military person and is not entitled to apply knowledge that he or she might have by reason of a military specialty or personal experience."16
R v Cooper, 2018 CM 2014
Master Seaman Cooper was found guilty at a Standing Court Martial of sexual assault and ill-treatment of a subordinate to him. He was sentenced to imprisonment for a period of 22 months, dismissal from Her Majesty’s service, and a reduction in rank to the rank of Ordinary Seaman.
R v W (T.S.), 2018 CM 2004
Master Corporal W. (T.S.) was found guilty of sexual assault and sentenced to imprisonment for a period of 18 months, dismissal with disgrace from Her Majesty’s service, and a reduction in rank to Private.
R v Wilks, 2017 CM 1008
Petty Officer 2nd Class (Retired) Wilks is also one of the parties to the appeal to the Supreme Court of Canada in Déry concerning section 11(f) of the Charter. However, in this separate case he was found guilty of sexual assault and three charges of breach of trust by a public officer and sentenced to a period of imprisonment of nine months.
Developments and Policy Initiatives
Support to Victims
Providing support to victims and survivors is a strategic priority for the Government of Canada and the Canadian Armed Forces clearly articulated in Strong, Secure, Engaged and Operation HONOUR. Such support for victims and survivors is directly linked to the legitimacy of the military justice system. The development of policies providing support to victims and survivors at all stages of the military justice system, including during an investigation, at summary trial and at court martial, will further commitments made to provide a full range of support services to victims and survivors.
The Canadian Victims Bill of Rights was enacted in 2015 to provide rights to victims of a crime such as the rights to information, protection, participation and restitution. The Military Justice Division was tasked with coordinating with and supporting the Canadian Armed Forces chain of command in identifying those protections which can be implemented by policy within the Canadian Armed Forces, while legislative options are being considered regarding rights for victims of crime in the military justice system. This process included consultation with various groups, including victim advocacy groups and civilian lawyers with relevant background and experience. The analysis of existing policies indicated that a significant portion of Canadian Victims Bill of Rights-inspired protections for victims has been addressed in Director of Military Prosecutions and Military Police policies. Further effect will be achieved by synchronizing current policies, which require relatively minor amendments.
The Judge Advocate General has also directed the Military Justice Division to generate options to provide legal advice to victims and survivors of sexual assault in the Canadian Armed Forces in an effort to significantly enhance the level of support available to them. This approach to victim support is considered an emerging "best practice", one which is now being piloted in some Canadian provinces, and by the United States Army and United States Navy. The Office of the Judge Advocate General proactively supports stakeholders mandated to provide services to victims by assisting them in their respective mandates and duties. For example, assistance is being provided to a working group that is developing a model for the provision of legal advice to admissible victims. This service would contribute to empowering victims and survivors by helping them make better informed choices about the situations they are facing.
Consequently, the Military Justice Division is providing legal services required to develop options resulting in efficient and effective models to be implemented by the appropriate entities with the benefit of broad internal and external consultation. Stakeholders supported by the Judge Advocate General include: the Canadian Armed Forces Strategic Response Team on Sexual Misconduct, the Sexual Misconduct Response Centre, and the Canadian Forces Provost Marshal. Consulted organizations include: the Department of Justice, several police organizations, senior officials in charge of provincial pilot programs, and victims advocacy groups. Although insights generated through this consultation have so far been invaluable, the specific needs of members of the Canadian Armed Forces and the unique aspects of the military justice system highlight the requirement for an initiative that is tailored to the Canadian Armed Forces context, which requires adaptation from each of the other existing initiatives. The Military Justice Division continues to refine possible courses of action with a view to ensuring the selected model will optimally support victims and survivors within the Canadian Armed Forces.
Policy on Sentencing Considerations Related to Aboriginal Offenders
The Minister of National Defence’s mandate letter17 from the Prime Minister specifies that: "No relationship is more important to me and to Canada than the one with Indigenous Peoples." With this in mind, sentencing considerations related to aboriginal offenders has therefore been identified as a strategic priority by the Judge Advocate General. The Office of the Judge Advocate General is currently looking to develop the best courses of action to implement the consideration of the circumstances of aboriginal offenders at sentencing in the military justice system. The Office of the Judge Advocate General has engaged with many stakeholders inside and outside the Canadian Armed Forces to implement a policy that aligns with broader Canadian Armed Forces efforts and initiatives concerning indigenous persons.
Bill C-15 Implementation
The Military Justice Division has continued its work, in conjunction with the Department of Justice’s National Defence Regulatory Section, to draft the regulations necessary to bring into force the remaining amendments made to the National Defence Act as a result of the Strengthening Military Justice in the Defence of Canada Act. These amendments focus on the military justice system and address, among other things, matters related to sentencing, victim impact statements, and summary trials. The improvements in fairness and flexibility introduced by these amendments enhance the effectiveness, and thus the legitimacy, of the military justice system. A military justice system reflective of Canadian values is one that will help the Canadian Armed Forces promote a culture of leadership, respect, and honour – cornerstones of Canada’s Defence Policy - Strong, Secure, Engaged. These amendments advance these objectives as they come into force in 2018.
Superintendence Enhancement and Assessment Project (SEAP)
In the 2015/16 JAG Annual Report, the Judge Advocate General announced the initiation of an audit team in order to "develop and pilot a process for… [the collection of] objective and measurable data from a variety of sources and through a variety of mechanisms in order to assess the unit level administration of the Code of Service Discipline." From this original concept the mandate has been expanded to comprehensively address the efficiency and efficacy of the military justice system as a whole.
Based on this mandate, the SEAP was created with the Superintendence Enhancement and Assess-ment Team (SEAT) to see to its implementation. In order to achieve the Judge Advocate General’s direction, the SEAT began work on two sub-projects under SEAP which will combine to provide institutional strategic oversight and will enhance the Judge Advocate General’s ability to carry out her statutory mandate of superintendence of the administration of the military justice system. It will also provide data for performance measurement initiatives.
1. The Justice Administration and Information Management System (JAIMS)
The first sub-project under SEAP is the JAIMS. JAIMS will be an electronic system designed to seamlessly and electronically track military justice files from the reporting of an alleged infraction, through to investigation, charge laying, trial disposition and review in both the summary trial and court martial processes. Front-end users of the system (including investigators, charge layers, presiding officers, review authorities, referral authorities, legal advisers, prosecutors and defense counsel) will input data at each stage of the process thereby allowing the progress of a file to be tracked in real-time.
JAIMS will deliver the means to provide commanders at all levels with a user-friendly, responsive, effective and efficient real-time workflow tool that will facilitate the administration of military justice at the unit level. It will also ensure that a case proceeds through the system in a timely manner by confirming that the matter proceeds in the proper order and prompting key actors at the appropriate time when they are required to take a specific action. JAIMS will also compile all relevant statistics on the administration of military justice and provide strategic oversight of the entire military justice system.
Funding has been approved and development of JAIMS will begin during the next reporting period and the system will be piloted before a Canadian Armed Forces-wide launch.
2. Military Justice Stakeholder Engagement Project (MJSEP)
The second sub-project under SEAP is the MJSEP. MJSEP will consist of targeted questionnaires and on-site visits designed primarily to collect quantifiable and measurable subjective as well as qualitative data from military justice stakeholders. During the next reporting period, the SEAT will continue working on MJSEP by identifying which stakeholders will participate in the first engagement, designing the questionnaires and planning the on-site visits.
Military Justice Performance Management System
The Military Justice Division has been directed to develop and implement a new military justice performance measurement system. Once implemented, it is envisaged that the performance measurement system will work with JAIMS and MJSEP in order to further enable the effective and efficient superintendence of the military justice system. It is intended that these new sources of data will further enable the Office of the Judge Advocate General to conduct evidenced-based analysis and decision-making. This will allow a proper analysis of the performance of the military justice system and to identify any issues to be addressed.
Office of the Auditor General Audit of the Military Justice System
During this reporting period, the Office of the Auditor General of Canada conducted an important audit of the military justice system. The Office of the Judge Advocate General remained fully committed to fully supporting the Office of the Auditor General in this audit through complete transparency and sharing of information. This approach allowed the Office of the Judge Advocate General to identify and address some deficiencies as they were identified. For example, the Canadian Military Prosecution Service took the initiative to institute a number of changes to expedite disclosure to defence counsel.
Court Martial Comprehensive Review
The Court Martial Comprehensive Review (CMCR) was initiated by the previous Judge Advocate General by terms of reference dated 13 May 2016. The purpose of this internal review was to conduct a legal and policy analysis of all aspects of the Canadian Armed Forces’ court martial system and provide options to enhance the effectiveness, efficiency, and legitimacy of that system. Soon after her appointment, the Judge Advocate General met with the CMCR Team and provided additional guidance including direction to make the document a policy-based analysis, not subject to solicitor-client privilege, in order for the document to be made public. A draft CMCR report was provided to the Judge Advocate General in July 2017. In large part due to challenges related to methodology and a paucity of metrics and analytics, the document was of limited assistance in assessing the current court martial system. The draft internal report will therefore serve as a discussion paper. It offers perspectives that may be taken into account following receipt of the Auditor General’s report, the report of the next independent review authority along with other internal and external consultations on the military justice system. The Judge Advocate General published the draft CMCR report on 17 January 2018 and has communicated publicly her decision that the CMCR project has reached its conclusion.18
Chief Military Judge Charged with Offences Under the Code of Service Discipline
On 25 January 2018, the Canadian Forces National Investigation Service laid charges against the Chief Military Judge. This unique and unprecedented situation raised many questions concerning the military justice system. Just like the civilian justice system, the military justice system has the appropriate mechanisms and tools to deal with this exceptional situation, fairly and in accordance with the law. The matter is now proceeding in the military justice system.
2018-2021 Office of the JAG Strategic Direction
In February 2018, the Judge Advocate General issued the 2018-2021 Office of the JAG Strategic Direction,19 which provides the Judge Advocate General’s direction and guidance on the Mission, Priorities and Relevance Proposition for the Office of the Judge Advocate General. These guiding principles reflect the values of the Office of the Judge Advocate General and set the expectations of professional conduct for its members, including to deliver client-focused, timely, options-oriented and operationally-driven military legal services, and support the superintendence of the administration of the military justice system in the Canadian Armed Forces. In particular, this Direction highlights the requirement to respect the independent roles of each statutory actors in the military justice system. In implementing this Direction, members of the Office of the Judge Advocate General will work together to enhance communication, leverage technology, use relevant data to support decision-making and align their priorities and resources with the Governmental, Departmental and Canadian Armed Forces’ objectives and priorities. The Office of the Judge Advocate General will be an inclusive, gender equal, diverse, resilient and ready team that will be prepared to effectively and efficiently deliver high quality military legal services.
Canadian Armed Forces Discipline Advisory Council
The Canadian Armed Forces Discipline Advisory Council is mandated to discuss and provide input on matters pertaining to the maintenance of discipline and policies related to the continued effective functioning of the Code of Service Discipline. It is co-chaired by the Canadian Armed Forces Chief Warrant Officer and the Judge Advocate General Chief Warrant Officer and its membership includes the most senior non-commissioned members from each command and from other key organizations within the Canadian Armed Forces. The Council met four times during this reporting period and addressed a number of topics including proposed legislative, regulatory and policy changes impacting the military justice system, as well as current initiatives in development aimed at improving the administration of military justice. This Council plays a vital role for the Judge Advocate General in her role as the superintendent for the administration of military justice. The Council provides an invaluable forum for the discussion of current issues concerning discipline and the military justice system.
Bill C-66: Expungement of Historically Unjust Convictions Act
Bill C-66, which was introduced in the House of Commons on 28 November 2017, creates a procedure for expunging certain historically unjust convictions and provides for the destruction or removal of the judicial records of those convictions. Eligible offences include a number of sexual offen-ces involving consensual sexual activity between same-sex persons whether they were prosecuted under the Criminal Code or the National Defence Act. Bill C-66 deems a person who is convicted of an offence for which expungement is ordered never to have been convicted of that offence. The Office of the Judge Advocate General provided direct support to this legislative initiative, ensuring that service offences under the National Defence Act would be included. During this reporting period, Bill C-66 was referred to the Standing Senate Committee on Human Rights following Second Reading (27 March 2018) and further information on the progress of Bill C-66 is expected during the next reporting period. The Office of the Judge Advocate General remains ready to provide the required legal services regarding the implementation of this legislation.
14 The appeal to the Supreme Court of Canada is known as Stillman v R. This is due to some of the original 11 applicants, including Déry, not being part of the appeal to the Supreme Court of Canada.
15 Subsection 130(1) of the National Defence Act states:
130 (1) An act or omission
(a) that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, or
(b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part VII, the Criminal Code or any other Act of Parliament,
is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2).
16 R v Rollman, 2017 CM 2005 at paras 79-83.
17 Minister of National Defence Mandate Letter, November 12, 2015, https://pm.gc.ca/eng/minister-national-defence-mandate-letter
18 Judge Advocate General Statement, Draft Internal Report - Court Martial Comprehensive Review, dated 17 January 2018, http://www.forces.gc.ca/en/about-reports-pubs-military-law-court-martial-comprehensive-review/index.page
19 Supra note 1
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