BG–10.032 - October 29, 2010
On October 25, 2007, the Canadian Forces National Investigation Service (CFNIS) charged ex-Corporal Matthew Wilcox, a former 2nd Battalion Nova Scotia Highlanders (Cape Breton) soldier, with manslaughter, criminal negligence causing death, and negligent performance of a military duty.
General Court Martial proceedings began on Monday, November 24, 2008, at the Sydney Garrison, in Sydney, Nova Scotia. On July 30, 2009, the General Court Martial panel found ex-Corporal Wilcox guilty of criminal negligence causing death and negligent performance of a military duty. As a result of the conviction on the criminal negligence causing death charge, the alternative charge of manslaughter was ‘stayed’ by the panel. In accordance with Queen’s Regulations and Orders, where the court finds the accused guilty of one of the alternative charge(s) it must direct that the proceedings be stayed on any other alternative charge(s) if the evidence proved the offence. Such a stay does not have the effect of a finding of not guilty until the alternative charge on which the accused has been found guilty is finally disposed of.
On September 30, 2009 a sentence of imprisonment for four years and dismissal from Her Majesty’s service was imposed by the presiding Military Judge. Ex-Corporal Wilcox filed a Notice of Appeal on September 30, 2009 and, on December 7, 2009, the Court Martial Appeal Court (CMAC) ordered that he be released from custody pending appeal.
On October 18, 2010, CMAC allowed the appeal, set aside the convictions and directed a new trial. That decision was based upon a review of written submissions from counsel for ex-Corporal Wilcox and for the Director of Military Prosecutions (DMP) and a joint memorandum reflecting the fact that the DMP conceded a ground of appeal. That ground related to an error of law made at trial regarding the constitution of the court martial panel; an error which had “a potentially substantial effect on the fairness of the trial.”
The DMP, who is appointed by and acts on behalf of the Minister of National Defence (MND), is a key actor in the military justice system. The DMP’s statutorily prescribed roles and responsibilities under the National Defence Act include: “preferring” all charges to be tried by court martial; the conduct of all prosecutions at courts martial; and acting for the Minister in respect of appeals. The DMP exercises independent prosecutorial discretion in relation to specific cases on behalf of Her Majesty and the MND. With respect to an order for a new trial made by the CMAC, DMP is required to review the case to determine whether the charges ought to be proceeded with.
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