Military Justice Jurisprudence
This chapter examines key military justice jurisprudence from the 2024/2025 reporting period. These decisions, from courts martial, the CMAC, the Federal Court of Canada, and the Supreme Court of Canada will have a significant impact in guiding the military justice system’s future development.
Notably, this is the first full reporting period during which a new framework has been in effect to further clarify which cases should be managed by the military justice system and which should proceed through the civilian system. In response to recommendations of the IR3,Footnote 75 the Director of Military Prosecutions, in collaboration with the Federal-Provincial-Territorial Heads of Prosecution Committee, adopted the Statement of Principles and Presumptions for the Exercise of Concurrent Jurisdiction by Canadian Prosecuting Authorities (the Statement) to guide the exercise of prosecutorial authority and jurisdiction relating to offences where both the military and civilian justice systems have concurrent jurisdiction.Footnote 76 The Director of Military Prosecutions also issued the Direction Regarding the Implementation of the Statement of Principles and Presumptions for the Exercise of Concurrent Jurisdiction by Canadian Prosecuting Authorities, which, along with the Statement, supports a consistent national approach to managing concurrent jurisdiction and helps to inform Canadians about the evolving relationship between the military and civilian criminal justice systems.
In line with recommendation 5 of the IECRFootnote 77 and his interim direction,Footnote 78 the Director of Military Prosecutions informed the Federal-Provincial-Territorial Heads of Prosecution Committee that it would no longer prosecute Criminal Code sexual offences in the military justice system. It is important to note that although this recommendation was implemented by both the Director of Military Prosecutions and the Canadian Forces Provost Marshal in 2021, it did not apply retroactively to cases already within the military justice system at that time. For these cases, military prosecutors consulted with victims to determine whether they preferred that the matter proceed in the military justice system or be referred to the civilian criminal justice system, notwithstanding the fact that the IECR raised concerns about whether asking victims to make such a decision would serve the public interest.Footnote 79 In all remaining cases, victims expressed a clear preference for prosecution to be continued within the military system and as a result, several courts martial involving Criminal Code sexual offences continued under military jurisdiction. The few remaining courts martial involving Criminal Code sexual offences are expected to conclude during the next reporting period.
Courts Martial
The Power to Impose Driving Prohibitions under the Criminal Code
R v CalderonFootnote 80
R v Calderon considered the question of whether a military judge has the power to impose punishments that were not expressly included in the National Defence Act. The case involved the sentencing of a member who had pleaded guilty to two charges: dangerous operation of a motor vehicle and driving a Canadian Armed Forces vehicle in a manner that was dangerous to any person or property. Counsel for the defence and prosecution presented a joint submission recommending a sentence of reduction in rank, a reprimand, and a driving prohibition order for one year pursuant to section 320.24 of the Criminal Code.
This was the first time that a Criminal Code driving prohibition had been recommended as an ancillary order at court martial. Counsel argued that the powers available to superior and provincial court judges to issue driving prohibition orders are also available to military judges. The Court disagreed that military judges could issue driving prohibition orders under the Criminal Code provision and determined that the powers of civilian and military judges were comparable, but not equal. The Court pointed to jurisprudence from the CMAC and the Supreme Court of Canada highlighting that Parliament has legislated a sentencing scheme for those subject to the Code of Service Discipline that is different from the scheme applicable in civilian courts. Ultimately, the military judge concluded that the range of punishments a court martial could impose is limited to those set out in section 139 of the National Defence Act. As a result, the military judge determined the court could not impose a driving prohibition and did not order this as an ancillary order. The prosecution has appealed this decision, and it is scheduled to be heard in the next reporting period.
The Meaning of “Fighting” in the Code of Service Discipline
R v LawlessFootnote 81
In R v Lawless, the defendant was charged with one count of having fought with another person subject to the Code of Service Discipline, contrary to section 86 of the National Defence Act. The defendant argued that their participation in a wrestling match with a colleague was consensual and, as such, did not constitute “fighting” for the purposes of section 86.
The military judge took the view that subjective factors like consent and lack of intent to injure the other person were not essential elements of the offence of quarrels and disturbances. Rather, the military judge noted that fighting in the context of a National Defence Act section 86 offence requires conduct that threatens discipline in a military environment and that an assessment of whether such conduct exists must be made on an objective basis. The military judge reviewed the circumstances of the case and determined that a reasonable person could conclude that the wrestling match was a disruptive event that could cause a disturbance within the military quarters. Moreover, the military judge found that the evidence established that the defendant had met the mental element of the offence by intentionally engaging in the wrestling match. The result was a finding of guilt.
The Consequences of Late Disclosure
R v TurnerFootnote 82
Under the principle established by the Supreme Court of Canada in R. v. Stinchcombe, the prosecution must disclose all relevant information to the accused in a criminal case, including both evidence the prosecution intends to use and evidence it does not, regardless of whether that evidence is favorable or unfavorable to the accused.Footnote 83 In that context, R v Turner involved the question of whether a military judge should grant leave to withdraw charges because the prosecution was late in fulfilling its obligation to disclose relevant information to the defendant.
In this case, the prosecution did not disclose certain key evidence to the defendant, who had been charged with one count under section 86 of the National Defence Act arising from an altercation with another Canadian Armed Forces member while deployed in Latvia, until after the court martial had commenced. Prior to the commencement of the court martial, defence counsel had sought disclosure of additional military police notes from the prosecution and had been informed that no such notes existed. After the trial commenced and following the closing of the prosecution’s case, the prosecution indicated that military police had found the notes along with other relevant evidence. The court martial was adjourned to allow the prosecution to collect and review the newly discovered evidence. After doing so, the prosecution sought leave to withdraw the charges.
The military judge noted that the law only gives two options to a court martial faced with a request for leave to withdraw charges: either accept or refuse to grant leave. If the court martial agreed to grant leave and the prosecution withdrew the charges, the proceedings would come to an end, although the charges could be proceeded with at a later date. However, if the court martial refused to grant leave, the only possible outcome would be that the trial would continue, even though there may no longer be a reasonable prospect of conviction.
In light of the late disclosure of potentially exculpatory information, the military judge disagreed with the position of the prosecution that the rules of procedure required the defence to complete its case and final arguments before a verdict could be reached. The military judge instead found that based on defence testimony already heard, no outcome other than a finding of not guilty would meet the ends of justice, thereby ensuring that the charges could not be proceeded with at a later date. In handing down his reasons, the military judge also voiced concerns about the way the case unfolded. They highlighted the unfairness that late disclosure can cause and the need for participants in the military justice system to take steps to prevent it from occurring.
Military Justice Jurisdiction over Civilians
R v AllisonFootnote 84
The case of R. v. Allison concerns the issue of the military justice system’s jurisdiction over civilians outside of Canada. The defendant was a civilian living in Belgium with their spouse, a Canadian Armed Forces member. In 2022, the defendant was allegedly found asleep in their vehicle by the Belgian Federal Police, who suspected that they were impaired. Although no charges were laid under Belgian law, the defendant was charged under section 130 of the National Defence Act for impaired operation of a conveyance. A Standing Court Martial was convened in September 2024, in Geilenkirchen, Germany.
The defendant filed a notice of application for a plea in bar of trial in May 2024, seeking to terminate the proceedings, arguing that the Court Martial lacked jurisdiction. The defendant claimed that prosecution in the military justice system was arbitrary and disproportionate, infringing their section 7 rights under the Charter not to be deprived of life, liberty or security of the person except in accordance with the principle of fundamental justice. The defendant argued the lack of connection with Parliament's objectives in subjecting civilians to the Code of Service Discipline. The prosecution conceded that the right to liberty was at stake and argued that the military justice system was the only jurisdiction capable of exercising authority due to the Belgian authorities ceding jurisdiction to Canada. The prosecution further contended that it was in the best interest of the applicant to be tried by a court martial to avoid disrupting their family's life abroad.
The military judge began their analysis by clarifying that the issue at stake was not whether the military justice system had jurisdiction over the defendant – section 60 of the National Defence Act expressly makes a person accompanying any unit or other element of the Canadian Armed Forces that is on service or active service, in any place, subject to the Code of Service Discipline. This includes dependants of Canadian Armed Forces members posted outside of Canada. Rather, the military judge identified the issue as being whether the exercise of jurisdiction by the military justice system over the defendant was arbitrary or disproportionate. Ultimately, the military judge concluded that the exercise of jurisdiction was not arbitrary, as it aligned with the overarching principles of ensuring justice and maintaining order within the Canadian Armed Forces community abroad. The judge further elaborated that exercise of jurisdiction by the military justice system was essential in upholding the integrity of the Canadian Armed Forces and its members, including their families, who are posted internationally. Prosecuting under the National Defence Act ensures that dependants remain subject to Canadian laws, thereby preventing any legal vacuum that could arise from this type of unique living situation. This approach safeguards the interests of both the accused and the Canadian Armed Forces community, ensuring that legal accountability is maintained. The accused was subsequently convicted at court martial on one count of operating a conveyance while impaired and has appealed this decision. It is scheduled to be heard by the CMAC in the next reporting period.
Court Martial Appeal Court of Canada
Stay of Proceedings for Abuse of Process
R v BrousseauFootnote 85
In R v Brousseau, the CMAC considered an appeal from the Crown of a military judge’s order granting the respondent’s abuse of process motion to end their court martial. The respondent, who had been charged with sexual assault, sought to bring evidence regarding their prior sexual history with the complainant.Footnote 86 In a series of preliminary hearings, the military judge determined that this evidence was admissible. The military judge directed the prosecution to inquire of the complainant about their history with the respondent and to present this evidence through an agreed statement of facts. The prosecution indicated that they would not communicate with the complainant about their past sexual history and would seek a judicial review of any order from the military judge requiring them to do so. The prosecution took the position that the information sought was neither relevant nor necessary to establish the context of the complainant’s relationship with the respondent or whether consent had been given.
In response, the respondent brought a motion for abuse of process that was heard prior to the commencement of the court martial. At the end of the hearing, the military judge concluded that the prosecution’s conduct constituted an abuse of process, interpreting the prosecution’s position as a refusal to accept a court judgment on the admissibility of the past sexual relations.
The military judge concluded that holding the trial would undermine the integrity of the justice system and that the prosecution, in refusing to accept the court’s decision, [translation] “adopted the attitude of a privileged litigant party for whom court decisions are optional or negotiable”Footnote 87 and that the prosecution’s conduct was contrary to the interests of the complainant. The military judge found the appropriate remedy was to end the court martial as opposed to staying in the proceedings.
The CMAC allowed the appeal, finding that the military judge had erroneously interpreted the prosecution’s position as a refusal to comply with his decision on the admissibility of the evidence and found that the prosecution’s conduct did not amount to an abuse of process. The CMAC found that the military judge had erred as regards the scope of his trial management power when he compelled the prosecution to present their case in a specific way. The Court also found that the military judge’s decision to end the proceedings before the court martial had taken place was an extreme remedy, equivalent to a stay of proceedings. The possibility that proceedings could have been instituted in the civilian criminal system did not change that fact. Finally, the CMAC found that the military judge made a palpable and overriding error when he underestimated the effect on the complainant of an interruption of the proceedings days before trial. While the Court did refrain from ruling on the admissibility of the complainant’s past sexual misconduct due to being insufficiently linked to an approved ground of appeal, it did also state that its reasons should not be construed as endorsing in any way the military judge’s reasoning on the issue. The CMAC ordered that the court martial be recommenced before a different military judge. Leave to appeal this decision to the Supreme Court of Canada was sought, but the application was dismissed.
The Application of the Code of Service Discipline to Young Offenders
R v JLFootnote 88
In R v JL, the CMAC considered the application of the Code of Service Discipline to young offenders. The appellant had been found guilty at court martial of one count of sexual assaultFootnote 89 and one count of behaving in a disgraceful manner. The defendant was a seventeen-year-old member of the Canadian Armed Forces at the time of the commission of the offences. At trial and sentencing, defence counsel brought applications arguing that certain provisions of the National Defence Act violated section 7 of the Charter because those sections were inconsistent with the principle of fundamental justice that entitles young persons to a presumption of diminished moral culpability. At sentencing, the military judge found that section 60 of the National Defence Act only provides jurisdiction to try young persons for summary infractions and those ‘uniquely’ military service offences that do not result in the offender having mandatory penalties.
In its decision, the CMAC recognized the importance of a separate youth criminal justice system and reemphasized that the Supreme Court of Canada has recognized a presumption of diminished moral blameworthiness for young offenders as a principle of fundamental justice. Unlike the Youth Criminal Justice Act,Footnote 90 the National Defence Act does not contain provisions that give recognition to this principle and does not explicitly enhance procedural rights for young persons charged with or convicted of military service offences.
The CMAC found the failure of the National Defence Act to recognize the presumption of diminished moral responsibility did not lead to the conclusion that the military justice system is wholly unconstitutional as it applies to young persons, as the discretionary powers of military judges largely allow for the presumption to be put into effect. However, the CMAC found that where the National Defence Act imposes non-discretionary consequences following conviction, such as mandatory minimum sentences, criminal records, sexual offender registry orders, and DNA production orders, the Act is unconstitutional as it applies to young persons and cannot be saved under section 1 of the Charter.Footnote 91 Sentencing options for such offenders are now limited to a severe reprimand, reprimand, fine, or minor punishment, as any more severe punishment would result in a mandatory criminal record. The punishments of forfeiture of seniority, reduction in rank, detention, dismissal from His Majesty’s service and imprisonment are no longer available.
The practical impact of this decision on the military justice system is likely to be limited, as a review of reported court martial decisions suggests that J.L. is the only case, over at least the past ten years, where a young person charged with a Criminal Code or Code of Service Discipline offence has faced a court martial. Moreover, the decision should have no impact on Canadian Armed Forces international operations, given that the National Defence Act and internal policy prohibits a person who is under the age of 18 years from being deployed to a theatre of operations.Footnote 92
Fit Sentences for Administratively Released Members
R v MeeksFootnote 93
In R v Meeks, the CMAC considered an appeal concerning the 30-day detention sentence imposed on a member of the Canadian Armed Forces convicted of assault causing bodily harm. After the conviction, the individual was administratively released from the military. Relying on the precedent set in R v Tupper,Footnote 94 the appellant argued that detention was no longer an appropriate punishment. In Tupper, the Court found that a member who had been administratively released from military service could no longer be subject to punishment reserved for soldiers. The appellant in Meeks claimed that the sentence should be deemed inoperative. In response, the prosecution contended that the Tupper decision was flawed and invited the CMAC to revisit the decision for correctness.
In allowing the appeal, the CMAC declined to revisit the Tupper decision but did find that the decision should be read narrowly. According to the Court, the decision in Tupper did not limit the jurisdiction of the military justice system or allow a valid sentence to be overturned by an administrative decision. Instead, the court found that Tupper should be read as standing for the limited proposition that an appellate court may consider a post-sentence administrative discharge when considering the fitness of the sentence. The Court concluded that, while the original sentence was fit at the time it was imposed, the appellant’s subsequent administrative release warranted suspending the remainder of the detention.
The Constitutionality of Sex Offender Registration
R v O'DellFootnote 95
R v O’Dell is one of a number of cases in recent years involving the application of National Defence Act provisions requiring a mandatory Sex Offender Information Registration Act (SOIRA)Footnote 96 order in relation to certain offences. These cases follow the Supreme Court of Canada’s decision in R v NdhlovuFootnote 97 that found equivalent Criminal Code provisions requiring mandatory lifetime SOIRA registration for designated offences violated section 7 of the Charter, which guarantees the right to life, liberty, and security of the person.
The appellant in R v O’Dell had been convicted by a General Court Martial of sexual assault and was sentenced to 42 days of detention. A SOIRA order was also imposed by the military judge. At sentencing, the appellant challenged the mandatory SOIRA order and sought a personal remedy under section 24 of the Charter. The military judge concluded that although they had the discretion to grant a personal remedy, they did not have a sufficient evidentiary base to do so. Specifically, the military judge noted that the appellant had failed to meet their burden to establish that the risk of reoffending was low. The military judge imposed the mandatory order, requiring the appellant to register as a sex offender for 20 years.
The CMAC granted the appeal with respect to the SOIRA order, finding that the military judge approached the test in section 24 of the Charter too narrowly. According to the Court, the risk of reoffending was only one of the factors the military judge should have considered. The judge was also required to consider the impact the SOIRA order would have on the appellant and whether this would be grossly disproportionate. The CMAC noted that, among other things, SOIRA orders can impose rigorous restrictions on travel, which are likely to have considerable consequences for the appellant’s ability to fulfill duties within the Canadian Armed Forces. The Court found the military judge had failed to take this into account in denying the appellant’s application for a personal remedy and that the evidentiary record and the appellant’s submissions satisfied the requirements of the section 24 test. Accordingly, the Court allowed the appeal against the sentence and set aside the SOIRA order.
The Law of Eyewitness Identification
R v SutherlandFootnote 98
In R v Sutherland, the CMAC considered an appeal of a conviction at court martial for sexual assault. The Defendant had been convicted by a Standing Court Martial of sexual assault in May 2022. Although all parties acknowledged at trial that the complainant was sexually assaulted while deployed aboard one of His Majesty’s Canadian Ships, the appellant claimed that the military judge had improperly applied the law in relation to eyewitness identification and made palpable and overriding errors of fact.
The CMAC dismissed the appeal. On the question of whether the military judge made a palpable and overriding error of fact regarding the identity of the perpetrator, the Court found the military judge had considered both the eyewitness testimony of the complainant and the circumstantial evidence surrounding the deployment and the offence. The Court concluded there was sufficient evidence for the military judge to draw the inference that the complainant recognized the appellant as the person who had assaulted them.
On the question of whether the military judge misapplied the law in relation to eyewitness identification, the appellant claimed the military judge failed to account for the way the complainant’s identification evidence had been tainted by being shown a Facebook photo of the appellant and then a limited photo pack lineup in the course of the investigation. The CMAC acknowledged difficulties in the way the identification evidence was developed, noting that the Facebook photo amounted to a one-person lineup, and that the subsequent photo pack lineup only included pictures of the ship’s air crew. The Court noted these difficulties created a risk of tainting the identification evidence. However, the CMAC found that the military judge was alive to these risks with the identification evidence, carefully assessed the evidence and the relevant jurisprudence, and that the judge made no error of law.
Federal Court of Canada
The Reasonableness of a Summary Hearing Review
Wiome v Canada (Attorney General)Footnote 99
In Wiome v Canada (Attorney General), the Federal Court of Canada considered an application for judicial review of the decision of a Review Authority for a summary hearing. An OCSH found the applicant had committed two service infractions arising from their conduct at a mess dinner and imposed a sanction of reduction in rank. The applicant requested a review of the OCSH’s decision on the grounds that insufficient written reasons were provided to justify the sanction and that the reduction in rank had adversely affected their mental health and infringed their right to security of the person guaranteed by section 7 of the Charter. The Review Authority found the sanction was reasonable and the applicant then applied for judicial review.
The Federal Court reviewed the Review Authority’s decision against a standard of reasonableness, meaning that the Court would not interfere with the decision unless it contained “sufficiently serious shortcomings […] such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency.”Footnote 100 The Court found the Review Authority’s decision to be unreasonable as the Review Authority mistakenly applied a reasonableness standard to their review of the OCSH’s decision when the appropriate standard of review should have combined elements of an appeal and a de novo hearing of the matter. Moreover, the Review Authority’s analysis departed significantly from the OCSH’s written reasons and supplemental submissions and appeared to consider evidence that had not been in the record. The Court concluded that the Review Authority’s decision did not comply with the applicable legislative and policy framework and lacked the requisite degree of justification, intelligibility and transparency. The Court allowed the application, remitting the matter to a different Review Authority for redetermination.
Supreme Court of Canada
The Independence of Military Judges
R v EdwardsFootnote 101
In April 2024, the Supreme Court released its decision in R v Edwards and several related casesFootnote 102 involving Canadian Armed Forces members who had either appealed their convictions at court martial or had their proceedings stayed. The ground of appeal which united these cases was that the military status of the judge that had presided over their respective court martial violated their rights under section 11(d) of the Charter to be tried by a fair and impartial tribunal.
As covered in the last year’s annual report, the Supreme Court reaffirmed that the status of military judges as both judges and military officers who are subject to legitimate military laws does not undermine their judicial independence. The Supreme Court’s decision is important because it clarifies that, while individuals 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 tried in the civilian system, this does not mean that the two systems must be identical in all respects. The Supreme Court recognized that section 11(d) does not require absolute or ideal independence and that the different purpose of the military justice system may require it to depart from its civilian counterpart in some respects while still maintaining the same level of procedural safeguards.
In reaching its conclusion, the Supreme Court noted the myriad safeguards of judicial independence set out in the National Defence Act. Some examples include the fact that military judges enjoy security of tenure, have a separate regime for grievances and have protection against relief from performance of military duty. The Supreme Court also noted that military judges can only be removed for cause by the Governor in Council upon recommendation of the Military Judges Inquiry Committee and that their pay is set by an independent Military Judges Compensation Committee. Regarding the impartiality of military judges, the Supreme Court was satisfied that military judges’ dual roles as both officers and judges does not automatically create a conflict of interest. In support of this, the Court cited section 165.23 of the National Defence Act, noting that “when acting as judges, military judges can be assigned other duties by the Chief Military Judge in addition to their judicial tasks, ‘but those other duties may not be incompatible with their judicial duties.’”Footnote 103 The Supreme Court also found that there was insufficient evidence to establish that the culture of respect for hierarchical authority in the military created a reasonable apprehension of bias on the part of military judges.Footnote 104
Furthermore, the Supreme Court found that military judges do not lack impartiality by virtue of the fact that they can be held accountable for failing to comply with lawful orders issued by superior officers for any actions taken outside of their judicial functions. Any disciplinary action taken by the executive towards a military judge for an improper purpose would be unlawful and would be either prevented or remediated by further safeguards in the National Defence Act, such as the independence of the Director of Military Prosecutions and the necessity to obtain pre-charge legal advice.
Following the Supreme Court’s decision, the Director of Military Prosecutions reassessed the reasonable prospect of conviction and public interest in recommencing the prosecutions that had been stayed by military judges.Footnote 105 In five cases, it was decided to withdraw chargesFootnote 106 and in three cases prosecution was recommended. Of those latter cases, one court martial has been completedFootnote 107 and two are scheduled for the fall of 2025.Footnote 108