MJ Jurisprudence: The Year in Review

This chapter examines some of the key military justice jurisprudence over the reporting period. These decisions, from courts martial, the Court Martial Appeal Court of Canada, and the Supreme Court of Canada will have a significant impact in guiding the military justice system’s future development.

Courts Martial

Section 179 of the National Defence Act, Powers of Courts Martial

In two cases during the reporting period, military judges exercised their authority under section 179 of the National Defence Act, which provides courts martial with the power to control their own procedures and to address situations not accounted for in the Code of Service Discipline or the Queen's Regulations and Orders for Canadian Forces.

In R v Levesque,^{Footnote 84} the military judge was called upon to consider those powers in relation to a general court martial panel where a panel member who had already been sworn-in raised concerns about their own impartiality. The accused was charged with sexual assault and was facing trial by general court martial. After the court martial had commenced and the prosecution was in the course of presenting its case, one of the panel members sent a note to the military judge indicating that he recognized the complainant, having previously served with her and her spouse for several years.^{Footnote 85} There are no provisions in the National Defence Act or regulations managing the procedure for potential bias of a panel member after a panel has been sworn-in.^{Footnote 86}

Citing section 179 of the National Defence Act, the military judge relied on section 644 of the Criminal Code, which manages the impartiality of jurors during a criminal trial, and the Ontario Court of Appeal precedent in R v Durant to conduct an inquiry into the matter.^{Footnote 87} Although the military judge was inclined to characterize the panel member’s responses during the inquiry as relatively neutral,^{Footnote 88} the judge nonetheless concluded that the panel member must be discharged on the grounds that a reasonably informed individual would perceive a reasonable apprehension of bias on the part of the panel member given the conditions surrounding a sexual assault trial.^{Footnote 89}

The second case, R v Houde,^{Footnote 90} involved the issue of whether bilingual court martial proceedings were permitted in the military justice system.^{Footnote 91} Finding that the National Defence Act was silent on the issue of bilingual courts martial proceedings,^{Footnote 92} the military judge relied on section 179 of the National Defence Act to fill in an apparent gap in court martial procedure. In exercising this authority, the military judge considered the most relevant provision from the civilian system, section 530 of the Criminal Code, which states that civilian criminal proceedings may be bilingual when circumstances justify holding such a proceeding.^{Footnote 93} The judge also considered the Ontario Court of Appeal’s decision in R v Sarrazin which lists several factors that would justify holding bilingual criminal trials.^{Footnote 94} Applying the Sarrazin analysis, the military judge determined there were sufficient reasons to justify holding a bilingual proceeding, including the fact that it would allow witnesses to testify in the official language of their choice without the filter of interpretation and that it would allow the accused to retain counsel who could use either language during the proceeding.^{Footnote 95}

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Court Martial Appeal Court of Canada

Capacity to Consent to Sexual Activity

R v Vu, 2023 CMAC 2

In R v Vu,^{Footnote 96} the Court Martial Appeal Court of Canada considered whether the military judge erred in law by not considering the totality of the evidence on the question of a complainant’s capacity to consent to sexual activity.

The accused, Pte Vu, was charged with sexual assault and voyeurism offences. Pte Vu had recorded his sexual acts with the complainant on his cellphone. In the video, he is heard asking the complainant several times if they consent to sexual activity, to which the complainant seems to acquiesce. However, at different times, the video also appears to show the complainant to be unconscious. On 5 November 2021, Pte Vu was acquitted of sexual assault by a standing court martial, where the presiding military judge determined that, based on the video, the complainant had consented to the acts in question.^{Footnote 97} The prosecution appealed the acquittal.

In a split decision rendered on 27 February 2023, the Court Martial Appeal Court dismissed the appeal. The majority of the Court concluded that the military judge had not committed an error in law and had correctly determined the issue of consent,^{Footnote 98} though they did find that he had improperly engaged in speculation about the complainant’s conduct.^{Footnote 99} The dissenting judge held that the military judge presiding at the court martial had failed to consider the whole of the evidence surrounding the question of consent,^{Footnote 100} pointing to the voluntary statement given by the accused to the Military Police which, in her view, showed that Pte Vu was aware that the complainant was unconscious at times during the act in question.^{Footnote 101} The prosecution appealed as of right to the Supreme Court of Canada who dismissed the appeal during the 2023/24 reporting period.

Stay of Sentence Pending Appeal

R v Thibault, 2022 CMAC 6

R v Thibault is part of the R v Edwards series of cases in which CAF members have appealed their convictions for service offences on the grounds that the military status of their court martial judges violated their rights under section 11(d) of the Canadian Charter of Rights and Freedoms^{Footnote 102} (the Charter) to be tried by an independent and impartial tribunal. The Court Martial Appeal Court of Canada dismissed all the appeals in the series of cases, but the Supreme Court of Canada has subsequently granted leave to appeal.

After unsuccessfully appealing his conviction for sexual assault on the same grounds as Edwards,^{Footnote 103} Sgt Thibault filed a motion with the Court Martial Appeal Court requesting a stay of his sentence pending resolution of the Edwards Supreme Court appeal. In its decision denying the request,^{Footnote 104} which was rendered prior to the Supreme Court granting leave to appeal, the Court Martial Appeal Court found that the criteria for granting a stay of sentence had not been met because the public interest criterion, which includes maintaining public confidence in the administration of justice, had not been satisfied.^{Footnote 105}

The Court Martial Appeal Court reviewed the circumstances of the case,^{Footnote 106} which included the following facts: the offence occurred more than a decade previously, only the military justice system took the offence seriously despite it being reported to civilian authorities, and the same question had been dealt with on numerous occasions in the Edwards cases.^{Footnote 107} In these circumstances, the Court concluded that a reasonable member of the public would expect the judgement to be executed in a timely manner.^{Footnote 108} The Court also noted numerous similarities to the appeal decision in R v Royes in which a member of the CAF had been convicted of a serious offence, was a minimal risk to the public, and was appealing only on a constitutional question.

Court Martial Jurisdiction Over Historical Sexual Assault Cases

R v MacPherson, 2022 CMAC 8

In this appeal, the Court Martial Appeal Court of Canada confirmed the limits of the military justice system’s jurisdiction over historical sexual assault cases.

In 1998, Parliament passed An Act to amend the National Defence Act and to make consequential amendments to other Acts^{Footnote 109} (Bill C-25). Bill C-25 granted the military justice system jurisdiction over a variety of offences, including sexual assault committed in Canada, by removing the prohibition against trying sexual assault offences by way of court martial that had been present in the National Defence Act at the time.^{Footnote 110} This section came into force on 1 September 1999.^{Footnote 111}

On 10 December 2019, MWO MacPherson was charged with sexual assault offences that had allegedly occurred between 1 August 1998 and 31 October 1998. On 8 September 2021, during pre-trial procedures leading to a general court martial, the presiding military judge terminated proceedings for lack of jurisdiction on her own motion. She concluded that the National Defence Act, as it was at the time of the alleged offences, precluded courts martial from trying sexual assault charges alleged to have been committed in Canada, and that she could not preside over a general court martial for this offence.^{Footnote 112}

The Court unanimously dismissed the prosecution’s appeal of the military judge’s decision. Based on its interpretation of the provisions of Bill C-25, the Court concluded that Parliament did not intend to grant retroactive jurisdiction to courts martial for sexual assault offences when it enacted Bill C-25. As a result, sexual assault offences that allegedly occurred in Canada prior to 1 September 1999 cannot be tried by court martial.^{Footnote 113}

Assessing Witnesses’ Credibility and Reliability

R v Euler, 2022 CMAC 5

The Court Martial Appeal Court of Canada provided a clarification in R v Euler^{Footnote 114} on the meaning of the term “credibility”, and, in particular, whether assessing a witness’s credibility requires consideration of both their credibility and the reliability of their testimony. This decision stems from the acquittal of Cpl Euler on charges of disgraceful conduct and ill-treatment of a subordinate by a standing court martial.^{Footnote 115} The prosecution appealed the acquittal on the grounds that the military judge made an error in law by requiring corroboration of the complainant’s evidence.^{Footnote 116}

On 9 May 2022, the Court unanimously dismissed the appeal, finding that the military judge did not make an error in law by requiring corroboration despite the fact that she found the complainant’s testimony to be credible. The Court concluded that the military judge had correctly applied the legal test for assessing a witness’s credibility as elaborated by the Supreme Court of Canada in the W(D) decision.^{Footnote 117} Although the Supreme Court has previously stated that the term credibility is often used to encompass both credibility and reliability,^{Footnote 118} the Court Martial Appeal Court noted that this is not always the case and a distinction can be made between the reliability and the credibility of evidence.^{Footnote 119}

Accordingly, the military judge did not err in finding that the complainant was a credible witness, in the sense that she was not trying to mislead the court, but also that her testimony was unreliable in the absence of further contextual evidence. As the Court pointed out, “evidence can be credible without being sufficiently reliable to meet the standard of proof beyond a reasonable doubt.”^{Footnote 120} Finally, the Court noted that the military judge’s approach was consistent with the Supreme Court of Canada’s approach in Gerrard^{Footnote 121} and thus it cannot be said that the judge made an error in law.^{Footnote 122}

Applicable Sentencing Principles

R v Bruyère, 2023 CMAC 1

In this appeal, the Court Martial Appeal Court of Canada clarified that military judges can consider both civilian and military cases when considering the parity of an individual sentence.

The respondent, Pte Bruyere, pleaded guilty at court martial to common assault and was sentenced to a $3000 fine and a severe reprimand.^{Footnote 123} The prosecution appealed the sentence on the grounds that the presiding judge imposed an inappropriate sentence and failed to consider civilian sentencing principles. The prosecution argued that the range of sentences considered by the presiding judge was incorrect and that imprisonment was the minimum sentence required.^{Footnote 124}

In a unanimous decision, the Court dismissed the appeal,^{Footnote 125} finding that the prosecution’s approach to sentencing ranges was too rigid to effectively serve as a guideline in identifying an appropriate, individualized sentence.^{Footnote 126} Moreover, the Court found that the presiding judge had, in fact, considered both civilian and military justice system cases in her sentencing analysis,^{Footnote 127} including the Rumbolt^{Footnote 128} and Simms^{Footnote 129} cases where a sentence of imprisonment had not been imposed following a conviction on assault charges.^{Footnote 130}

In making its decision, the Court elaborated that “[t]he principles of parity and uniformity in sentencing were adhered to in every way as part of a detailed and full review of the evidence, the legislation and the relevant military and civilian case law.”^{Footnote 131}

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Supreme Court of Canada

Extraterritorial Application of the Charter and the Proper Role of Interveners

R v McGregor, 2023 SCC 4

In this appeal before the Supreme Court of Canada, the Court in a judgment issued on 17 February 2023, reconfirmed the legal framework with respect to the extraterritorial application of the Charter and also clarified the proper role of intervening parties in appeals.

Cpl (retired) McGregor was convicted at court martial for a number of offences, including sexual assault and voyeurism, on the basis of evidence obtained through searches conducted in Alexandria, Virginia, that had been authorized by a warrant issued under Virginia law. Cpl McGregor unsuccessfully challenged the introduction of this evidence before his court martial and subsequently on appeal with the Court Martial Appeal Court of Canada as a violation of his right against unreasonable search and seizure under section 8 of the Charter.^{Footnote 132}

Speaking for the majority of the Court, Justice Côté explained that even if the Court were to accept Cpl McGregor’s contention that the Charter applied to the actions of Canadian authorities who participated in the search of his United States residence, this search was reasonable and conformed to the requirements of section 8 of the Charter.^{Footnote 133} The Court’s conclusion was in line with its 2007 decision on the extraterritorial application of the Charter in R v Hape,^{Footnote 134} where it held that the Charter does not apply outside Canada unless either local authorities consent to the application of Canadian law on their territory or the Canadian government’s actions violate its international obligations.^{Footnote 135} The Court reconfirmed and clarified a legal framework oriented toward respect for sovereignty and comity in law enforcement operations. As LeBel J. noted in Hape, “it is in practice impossible to apply the full force of the Charter to searches and seizures in foreign territory […] it would be unrealistic, in a co-operative investigation, to require the various officers involved to follow different procedural and legal requirements.”^{Footnote 136}

Although the Hape framework remains the current state of the law, it has been criticized in academic circles^{Footnote 137} and during the hearing multiple interveners requested that the Court overturn it.^{Footnote 138} The Court rejected the interveners’ requests, explaining that it was not necessary to consider overturning Hape in order to decide McGregor’s appeal. Further, neither Cpl McGregor nor the prosecution had made such an argument; both parties had simply debated the appropriate interpretation of the Hape legal framework in the current case.^{Footnote 139}

The Court further reminded all interveners about their proper role in the context of a hearing before the Court, reviewing the rationale underpinning the limits of an interveners’ role. Specifically, the Court explained that to allow interveners to raise issues that had not been raised by the parties was inappropriate and presented risks to the integrity of the judicial process. Such activity could prejudice the parties to litigation and impact other potential interveners who may not have expected these new arguments to be raised.^{Footnote 140}

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