Military Justice Jurisprudence
This chapter examines some of the key military justice jurisprudence over the reporting period. These decisions, from courts martial, the Federal Court of Canada, the Ontario Court of Justice, 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
The Constitutionality of Mandatory Sex Offender Registration
R v KohlsmithFootnote 77
In R v Kohlsmith, a military judge found the National Defence Act provision requiring mandatory sex offender registration to be invalid on grounds of unconstitutionality. Following a Supreme Court decision that found that a similar Criminal Code provision was unconstitutional, the judge found that the impugned National Defence Act provision was also unconstitutional and suspended the declaration of invalidity in accordance with the Supreme Court’s decision.Footnote 78
After his conviction at a Standing Court Martial for sexual assault, Sgt Kohlsmith brought a motion challenging the constitutionality of subsection 227.01(1) of the National Defence Act, which requires the mandatory lifetime registration of a sex offender. The defence cited the Supreme Court’s decision in R v NdhlovuFootnote 79 that found similar provisions in the Criminal Code to be unconstitutional infringements of the right to liberty protected under section 7 of the Charter. In R v Ndhlovu, the Supreme Court found the registration to be overbroad because it captured offenders that are not at risk of re-offending. The Court reasoned that there was no connection between the purpose of the registry and the future prevention of sexual crime for certain offenders.
The parties agreed that section 227.01 of the National Defence Act effectively mirrored the impugned Criminal Code provisions in R v Ndhlovu and suffered from the same constitutional flaw. As a result, the military judge extended the declaration of invalidity from R v Ndhlovu to section 227.01 of the National Defence Act and applied the Supreme Court’s suspension of the declaration of invalidity, noting the strong public interest for doing so.Footnote 80
R v O’DellFootnote 81
R v O’Dell is the second case from the reporting period where a military judge was required to consider the National Defence Act provisions requiring sex offender registration and impact of the Supreme Court’s R v Ndhlovu decision on those provisions.Footnote 82
Following his conviction for sexual assault, Cpl O’Dell applied at his sentencing hearing for a personal remedy exempting him from the application of the registration provisions on the grounds that they violated his right to liberty, protected under section 7 of the Charter. The prosecution opposed the application principally on the grounds that there was insufficient evidence regarding the low risk of recidivism.
Considering the various ways the R v Ndhlovu decision had been interpreted, the military judge agreed with the prosecution’s position that R v Ndhlovu should not be read as reinstating a discretion to trial judges to decide on their own motion, whether to impose a sex offender registration order when they are sentencing an offender. Nevertheless, the judge found that the Supreme Court’s ruling did not preclude a sentencing judge from considering a Charter application to decide to grant a personal remedy when the applicable burden of proof is met by the applicant.Footnote 83 The military judge found that Cpl O’Dell had not adduced sufficient evidence to support his application, particularly on the issue of his risk of reoffending, and declined to issue the exemption order.Footnote 84 On 25 July 2024, the Court Martial Appeal Court dismissed Cpl O’Dell’s appeal of his conviction, but upheld his appeal of the imposition of the sex offender registration order.Footnote 85
The Constitutionality of Sentencing Provisions for Young Offenders
R v J.L.Footnote 86
In R v J.L., the military judge considered the application of the military justice system to young persons. Finding that certain sentencing provisions were unconstitutional when applied to young persons, the judge read down the jurisdiction of the Code of Service Discipline so that it will no longer apply to young persons charged with offences under the Criminal Code and certain service offences in the National Defence ActFootnote 87 until the sentencing provisions are amended.
Pte J.L. was a reservist charged with sexual assault and disgraceful conduct. He was 17 years old at the time of the offences. Prior to his court martial, which occurred outside the reporting period, he brought an application alleging that the Code of Service Discipline did not apply to young persons. In response to this application, the military judge determined that the military justice system had concurrent jurisdiction to try young persons but declined to make any findings with respect to sentencing until the sentencing stage of the proceedings. Following his conviction, Pte J.L. brought another application challenging the constitutionality of the National Defence Act’s sentencing provisions as they applied to young persons. The defence argued that the sentencing procedures failed to recognize the presumption of diminished moral culpability that young persons are owed as a principle of fundamental justice under section 7 of the Charter. In response, the prosecution argued that, among other things, Parliament chose to have young persons in the military judged and sentenced under the Code of Service Discipline in the same manner as their adult counterparts in order to maintain the discipline, efficiency, and morale of the Forces.
The military judge found that the mandatory nature of some National Defence Act sentencing provisions obstructed military judges from giving effect to the presumption that young persons have less moral blameworthiness and culpability than adults.Footnote 88 The judge determined that the National Defence Act’s failure to recognize the reduced moral culpability of young persons infringed the principles of fundamental justice as protected by section 7 of the Charter and could not be saved under section 1 as a reasonable limit in a free and democratic society.Footnote 89 As a result, the judge prospectively read down the ambit of section 60 of the National Defence Act, the provision that establishes who is subject to the Code of Service Discipline, so that it would not apply to young persons charged with offences under the Criminal Code and certain, more serious service offences under the National Defence Act, that are not set out at paragraph 249.27(1)(a).Footnote 90 As a Charter remedy, the judge determined that both the public interest and the interests of the accused were best served by granting J.L. an absolute discharge so that there was no criminal conviction.Footnote 91 Both the defence and prosecution sought leave to appeal this decision to the Court Martial Appeal Court of Canada. The appeal was heard in February 2024.Footnote 92
The Authority of Military Judges to Suspend Sentences
R v MeeksFootnote 93
R v Meeks involves the question of whether a military judge has the authority to suspend the execution of a sentence following the completion of a court martial.
Sgt Meeks had previously been found guilty of the offence of assault causing bodily harm and sentenced to 30 days detention but filed an application for release pending appeal. At the application hearing, the military judge, concerned for Sgt Meeks’ mental health, suggested he attend a nearby hospital for an assessment prior to his release. Sgt Meeks spent several weeks in hospital and when he was released to appear before the military judge, he had served eight of the thirty days of detention that had been imposed. At the hearing, counsel for Sgt Meeks requested that the military judge suspend the remainder of his sentence based upon new information regarding his mental health. The prosecution argued that the military judge was functus officio with respect to suspending the sentence, as military judges are not listed as “suspending authorities” in the relevant regulatory provisions. The doctrine of functus officio means that once a decision-maker has rendered a decision on a matter, they cannot go back and revise that decision except in limited circumstances. The purpose of the doctrine is to provide finality of decision-making and to allow for potential review by an appellate level of court or other review authority.
In considering the issue, the military judge addressed jurisprudence on the doctrine of functus officio, noting that a decision cannot be re-visited simply because a court has changed its mind, made an error within its jurisdiction, or because there has been a change of circumstances. It can only do so if authorized by statute, there has been an issue in preparing the decision, or there has been an error in expressing the manifest intention of the court. The military judge also considered the relevant statutory and regulatory authorities. Under the National Defence Act, a sentence that has already been imposed can only be suspended by the specified suspending authorities listed in the Queen’s Regulations and Orders for the Canadian Forces; a list that does not include military judges. Based on these considerations, the military judge determined that they did not have the authority to suspend the sentence under these specific circumstances.Footnote 94 However, the military judge found that they did have authority to order a release pending appeal, provided, among other things, that the member established that they would surrender themselves when required and that their detention or imprisonment was not necessary in the interest of the public or the Canadian Armed Forces.Footnote 95 The military judge, finding that these criteria had been met, ordered Sgt Meeks to be released pending appeal subject to conditions imposed. As of writing this report, the decision of the military judge has been appealed and will be heard in October 2024.Footnote 96
Federal Court of Canada
The Entitlement to Elect Trial by Court Martial
Noonan v Canada (Attorney General of Canada)Footnote 97
The case of Noonan v Canada, and its companion case, Strecker v Canada, involved applications for judicial review of the summary trial Review Authorities’ decisions. Both cases turned on the common issue of whether the Reviewing Authorities reasonably interpreted the phrase “dress and deportment” as it appeared in Queen’s Regulations & Orders for the Canadian Forces article 108.17(1)(a) to mean that the Applicants had no right to elect a court martial. The provision was repealed in June 2022 with the introduction of the summary hearing system, after the decisions under review were rendered.
The applicants, Sgt Noonan and LCdr Strecker, were charged under section 129 of the National Defence Act for conduct to the prejudice of good order and discipline based on allegations that they made inappropriate comments. They sought to elect trial by court martial, but in both cases, the Presiding Officer and Review Authority determined that the offences were minor and related to dress and deportment and, therefore, the Applicants were not entitled to elect court martial. They were found guilty at summary trial and sentenced to fines. Both sought review of their Presiding Officers’ findings. In both cases the Review Authorities agreed that the nature of the offences did not give rise to a right to elect court martial. Both applied for judicial review at the Federal Court of Canada.
The Federal Court granted the applications, finding that the Review Authorities had failed to observe modern principles of statutory interpretation and to consider the meaning of the words “dress and deportment” within the context of section 129 of the National Defence Act or with a view to the overall purpose of the Queen’s Regulations and Orders for the Canadian Forces provision.Footnote 98 According to the Court, “dress and deportment” must be interpreted conjunctively to cover issues relating to the wearing of uniforms, cleanliness of uniforms, or other dress related infractions. The Court based this conclusion on three considerations: first, following the limited class rule of statutory interpretation, the Court explained that Queen’s Regulations and Orders for the Canadian Forces article 108.17(1)(a) uses the expression “dress and deportment” as a single term of art, as one of the three enumerated categories pertaining to s.129 of the National Defence Act, and in relation to the two other related categories.Footnote 99 Second, the Court reasoned that reading “dress and deportment” disjunctively would lead to the absurd result of subsuming serious service offences into minor non-electable offences.Footnote 100 Finally, the Court stated that, if the legislative intent was to read the phrase disjunctively, the provision would have read “dress or deportment” instead of “dress and deportment.”Footnote 101 The Court quashed the findings as to guilt and sentence and granted each of the applicants their costs.
Ontario Court of Justice
Unreasonable Trial Delay due to Transferring to the Civilian Justice System
R v HarrisonFootnote 102
In R v Harrison, the Ontario Court of Justice stayed proceedings against a former Canadian Armed Forces member for sexual assault on the ground that the delay in bringing the case to trial had violated the accused’s Charter right to be tried within a reasonable time.
The alleged sexual assault, in which the complainant was also a Canadian Armed Forces member, occurred at Canadian Forces Base Petawawa in April 2020. The complaint was originally investigated by military police who laid service offence charges at the end of March 2021. Following Mme Arbour’s interim recommendation that sexual offences be referred to civilian authorities, the Director of Military Prosecutions issued an Interim Direction in November 2021 to implement this recommendation. In accordance with the Interim Direction, military prosecutors consulted all affected complainants in cases of this nature as soon as possible in order to make them aware of the interim recommendation and to seek their views on jurisdiction for the case to proceed. This direction was fully implemented in all cases, including in the case of Harrison. The direction further emphasized that “the views of a victim complainant on whether a case should proceed in one jurisdiction or another, or not proceed at all, are considered as determinative in all but the most exceptional circumstances.”Footnote 103
On 21 December 2021, the service offence charges were withdrawn following a request from the complainant. On 23 December 2021, an information under the Criminal Code was laid against the accused in the Ontario Court of Justice. After several delays, a trial was eventually scheduled to commence in August 2023, prior to which counsel for the accused brought an application to stay the charges on the grounds of unreasonable delay.
Under the analytical framework established by the Supreme Court of Canada in R v Jordan,Footnote 104 an accused’s right to be tried within a reasonable time under section 11(b) of the Charter will be presumptively violated if the time between the laying of charges and the conclusion of a trial in a provincial court, exceeds 18 months. This presumption can be rebutted in situations where the delay is attributable to the defendant’s own conduct or as the result of extraordinary circumstances. In the case of R v Harrison, the delay between the laying of the initial charges by the military police and the scheduled conclusion of the trial was slightly longer than 29 months.Footnote 105 The Crown argued that, among other things, a significant portion of this delay was attributable to the extraordinary circumstances of having the case transferred from the military to the civilian justice system in response to the recommendations of both the IR3Footnote 106 and the IECR.Footnote 107
The Court rejected this argument, finding that it must take “a fairly restrictive approach to the issue of exceptional circumstances where there has been a dramatic change in the law which affects the military justice process.”Footnote 108 In light of this approach, the Court found that the Crown had not proven a clear link between the recommendations and the decision to discontinue the military proceeding and commence the case in the civilian system. Importantly, the Court found that it had not been provided with evidence regarding the steps taken to implement the Director of Military Prosecutions’ Interim DirectiveFootnote 109 or taken to mitigate the impact of the decision to transfer the case to the civilian system.Footnote 110 Ultimately, the Court stayed the proceedings against the accused.
Court Martial Appeal Court of Canada
Application of the No Prima Facie Case Test
R v EllisonFootnote 111
In R v Ellison, the Court Martial Appeal Court considered whether the military judge erred in law by misapplying the no prima facie case test. The no prima facie case test applies where the defence contends that the prosecution has failed to adduce any evidence to establish an essential element of the offence with which the defendant has been charged.
The accused, a now retired medical officer, was charged with four fraud-related charges under sections 130 and 117(f) of the National Defence Act. Maj Ellison wrote medical prescriptions in the name of two service members for the benefit of his wife. The defence put forward a no prima facie case motion regarding the charges on the basis that the prosecution failed to introduce any evidence concerning the essential elements of the charge, namely dishonesty and an economic deprivation. The military judge found the prosecution had not discharged its burden of proving the essential element of a deprivation, and concluded there was no prima facie case, acquitting all charges. The prosecution appealed the acquittals on the grounds that the judge erred in the application of the no prima facie case test.
The Court Martial Appeal Court allowed the appeal, set the acquittals aside, and ordered a retrial. The Court concluded that the military judge made significant errors in applying the test for the essential element of deprivation on the basis that Maj Ellison did not financially profit from writing the illicit prescriptions since his wife already was eligible for reimbursement through her health insurance.Footnote 112 The appeal judges were of the opinion that some evidence of the risk of deprivation existed because the service members were eligible for reimbursement from the Government of Canada, through Blue Cross, of which Maj Ellison had subjective knowledge.Footnote 113
The Necessary Procedure for Rejecting a Joint Sentencing Submission
R v El ZeinFootnote 114
In R v El Zein, the Court Martial Appeal Court considered whether the military judge erred in law by rejecting a joint sentencing submission and imposing a stricter sentence, without giving the parties prior notice of his intention, and the opportunity to make further submissions regarding sentencing.
The accused, Cpl El Zein, was charged with sexual assault. Cpl El Zein and the victim were friends. During a run together, he suggested the possibility of sexual relations between them, kissed her, then proceeded to touch her in a sexual manner, despite her insistence that she wanted to get to know him better first. While Cpl El Zein contested the charges, prosecution and defence counsel agreed on a joint submission on the sentence if found guilty: reduction in rank from Corporal to Private, a fine of $5,000, and 30 days of detention in the Canadian Forces Service Prison and Detention Barracks in Edmonton. On 1 December 2021, a military judge convicted Cpl El Zein, applying the recommended sentence from the joint submission but ordering 30 days imprisonment instead of 30 days detention.Footnote 115 Cpl El Zein appealed both his conviction and the sentence imposed on him by the military judge.
The Court found that the military judge erred in principle by failing to give notice to the parties that he was going to impose a sentence that exceeded what the prosecution had submitted, and in failing to provide counsel with a second opportunity to address the court martial in that knowledge. They found the additional information provided at the appeal hearing respecting detention and imprisonment, including the rehabilitative aspects of detention, would have impacted the sentence the judge imposed.Footnote 116 The Court Martial Appeal Court dismissed the conviction appeal but allowed the sentence appeal, amending the sentence to include 30 days detention instead of 30 days imprisonment, as per the joint submission.
Inferences Concerning Myths and Stereotypes Surrounding Sexual Assault
R v CrouchFootnote 117
In this appeal, the Court Martial Appeal Court of Canada considered the threshold to overturn an acquittal when inferences are made concerning impermissible myths and stereotypes surrounding sexual assault.
Cpl Crouch was accused of twice exposing himself to the complainant, a higher-ranking service member with whom he had a previous friendship, at their place of work. The case relied on the credibility of the two witnesses, the complainant, and the accused. Cpl Crouch denied that any such acts occurred and was acquitted of all charges in October 2022 by a General Court Martial. The prosecution appealed the acquittals primarily on the basis that the military judge allowed inferences of myths and stereotypes relating to the complainant.
In considering the case, the Court noted that Canadian courts have, for many years, identified that myths and stereotypes may incorrectly impact the fact-finding process and unfairly inform the deliberation of some jurors, primarily in trials for sexual assault and related offences. There is no dispute that a trier of fact cannot rely on myths and stereotypes of how a complainant is expected to respond to a sexual assault to make adverse findings in relation to their credibility.Footnote 118
In their ruling, the appeal judges stated that an error did arise from the defence counsel’s closing submission on the basis that it invited the panel to engage in impermissible reasoning in relation to the complainant’s credibility. However, they also found there were inconsistencies and deficiencies in the complainant’s evidence that cast a reasonable doubt on guilt without reliance on myths and stereotypes.Footnote 119 The appeal was dismissed.
Supreme Court of Canada
The Capacity to Consent to Sexual Activity
R v VuFootnote 120
R v Vu involved an appeal by the prosecution of a Court Martial Appeal Court decision finding that a military judge had correctly determined the issue of a complainant’s capacity to consent to sexual activity.
Pte Vu had been acquitted in November 2021 of sexual assault by a standing court martial, where the presiding military judge had determined, based on a video Pte Vu had made, that the complainant had consented to the acts in question. The prosecution appealed the acquittal and in February 2023, the Court Martial Appeal Court dismissed the appeal.Footnote 121 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, though they did find that the judge had improperly engaged in speculation about the complainant’s conduct.
The prosecution appealed to the Supreme Court of Canada in January 2024. In its decision delivered from the bench, the Supreme Court dismissed the appeal, concurring with the reasons of the majority of the Court Martial Appeal Court. The Supreme Court found that the military judge did not apply the wrong legal principles and the judge’s assessment of the evidence was thorough and cumulative. While the Supreme Court found that the military judge engaged in some improper speculation, they found that these comments did not undermine the military judge’s fundamental findings.
Whether Military Judges are Sufficiently Independent
R v EdwardsFootnote 122
In October 2023, the Supreme Court heard the appeal in R v Edwards and several related cases covered in previous annual reports in which Canadian Armed Forces members had appealed their convictions for service offences on the grounds that the military status of the military judge that presided over their respective courts martial violated their Charter right to be tried by an independent and impartial tribunal.
Each of the appellants filed a preliminary application seeking a stay of proceedings, alleging that a Chief of Defence Staff order designating a commanding officer for military judges for matters of discipline infringed their right under section 11(d) of the Charter to be tried by an independent and impartial tribunal. In all the applicable cases, the military judges agreed that the Chief of Defence Staff’s order infringed the accused’s section 11(d) rights and stayed the proceedings under subsection 24(1) of the Charter. The Court Martial Appeal Court overturned the court martial decisions, ruling that no reasonably informed person would conclude that there was an apprehension of bias or that the independence of courts martial was compromised by the Chief of Defence Staff order. The Court Martial Appeal Court held that a complete separation between judicial and executive functions is not practicable in Canadian law, and need not be absolute to preclude the arrangement found in the military justice system where a judicial official is both a judge and an officer in the Canadian Armed Forces.Footnote 123
In April 2024, following the conclusion of the present reporting period, the Supreme Court released its decision dismissing the appeal. In so doing, the Court affirmed that accused members of the Canadian Armed Forces who are subject to courts martial in the military justice system are entitled to the same Charter guarantee of judicial independence and impartiality as those who are tried in the civilian system. However, the Court found that this does not require that the two systems be identical in every respect and that section 11(d) does not require absolute or ideal independence. “As presently configured in the [National Defence Act],” wrote Justice Kasirer for the majority, “Canada’s system of military justice fully ensures judicial independence for military judges in a way that takes account of the military context, and specifically of the legislative policies of maintaining ‘discipline, efficiency, and morale’ in the Forces and ‘public trust in . . . a disciplined armed force’ […]. Properly understood, the military context does not diminish judicial independence.”Footnote 124 The fact that military judges are also military officers and subject to legitimate military laws does not undermine their judicial independence.Footnote 125
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