CMAC: NDA s. 130(1)(a) violates Charter right to jury trial

[FJAG]

Not only an interesting decision but a very good, well reasoned one. It appears I've been away from the branch for too long as I've never run across this particular judge in my career. I'm glad to see that we are still producing high calibre jurists in our system. It's too bad that because of the way our system is structured that we can't appoint former military judges to our CMAC. (I guess technically we could but since all the members of the CMAC bench are generalist s96 or Federal Court judges who sit on a wide array of criminal and civil matters it isn't realistic to ever expect a former military judge (with experience mostly limited to military law) to be appointed to either the Federal court or a provincial superior court)

Good find ModlrMike

:subbies:

 

[Navy_Pete]

That was an interesting read, thanks.  Really logical and laid out some very good, practical reasons for the military to be able to maintain jurisdiction.

Did I follow that correctly, that if it got kicked over to the civilian court, it would be under the jurisdiction of the local court in Borden, and he'd be on the hook for all legal and travel costs?  I really don't see any upside for the applicant here; is that maybe something the defence lawyer glossed over and told them they'd just be off?

I'm assuming here if the military/SCC decides that they don't have jurisdiction, that would also reset the clock for the time to investigate/bring this case to trial in Ontario.

I'm also not really clear on why this would be considered breaching your constitutional right to a trial by jury, if you can elect a general court martial with five members on the jury. Been over a decade since I did the OPMEs, and have never seen anything other than a summary trial, but what am I missing here?

 

[dapaterson]

Folks should be careful what they ask for.  If charges move from the military to the civilian system, the right to legal representation paid by the crown goes away.  Free legal service is a considerable benefit...

 

[garb811]

That was an interesting read, thanks.  Really logical and laid out some very good, practical reasons for the military to be able to maintain jurisdiction.

Did I follow that correctly, that if it got kicked over to the civilian court, it would be under the jurisdiction of the local court in Borden, and he'd be on the hook for all legal and travel costs?  I really don't see any upside for the applicant here; is that maybe something the defence lawyer glossed over and told them they'd just be off?

I'm assuming here if the military/SCC decides that they don't have jurisdiction, that would also reset the clock for the time to investigate/bring this case to trial in Ontario.

I'm also not really clear on why this would be considered breaching your constitutional right to a trial by jury, if you can elect a general court martial with five members on the jury. Been over a decade since I did the OPMEs, and have never seen anything other than a summary trial, but what am I missing here?

Yes. Plus he wouldn't be on duty, he would have to take annual leave to attend.

Then the question becomes who is paying to fly in all of the witnesses to testify. With a Courts Martial there is no question, but right now, if MP lay the charge downtown and a witness is serving and has been posted, or even retired,  the Crown has come to expect the CAF to pick up the travel and TD costs even though there is no policy saying we have to do that.

I'd expect the clock would keep ticking as the member has been charged but I will defer to one of the lawyers in the forum as to their opinion.

 

[FJAG]

. . .
I'm also not really clear on why this would be considered breaching your constitutional right to a trial by jury, if you can elect a general court martial with five members on the jury. Been over a decade since I did the OPMEs, and have never seen anything other than a summary trial, but what am I missing here?

I'll gloss over your other questions and deal with the last one. I don't really think that there is an argument that there is a breach of a right to trial by jury. In fact the Charter states:

11. Any person charged with an offence has the right . . .

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

That makes it clear that under military law there is no right to trial by a jury.

The argument he makes is that since the offence is a civilian offence and not a military one (they argue it's only the offenses specifically listed in the CSD that are "military law"), he has a right to a trial by jury and therefore, because the military can't give him a jury, they can't try him. It is hard to call a military panel a jury even though it is similar in some respects. It's not one as contemplated by the CCC.

Some countries do things differently. I'm no expert on the US Uniform Code of Military Justice but I believe it does not have an equivalent of our s130. As an example there are specific offences listed in the UCMJ for murder -118; manslaughter-119; rape - 120; robbery -122; sodomy - 125; assault - 128; burglary - 129 etc.

I disagree with the CMAC in that I think s130 is clearly a military law offence which incorporates federal statues by reference which is a valid statutory process.

:subbies:

 

[Navy_Pete]

Thanks FJAG, that's interesting; didn't know the Charter specifically exempted military trials from the jury requirement.

Sounds like that was something specifically considered and excluded during the drafting of the legislation. Our current SCC seems to be pretty good about not reinterpreting the legislation so hopefully they will answer this case once and for all.

From a layman's POV that seems more like a hail mary to take advantage of a loop hole, but always feel that these kinds of appeals are playing the system vice actions taken in the interest of justice. It's the kind of thing that gives defence lawyers a bad reputation, and causes people to have lose faith in the courts.

 

[JesseWZ]

Looks like we're in a holding pattern until the SCC hears the case...


Military Court Ruling to Remain in Place Pending Supreme Court Decision - National Post

 

[garb811]

Somebody needs to swallow their pride and start shifting these charges into the civilian system ASAP...

 

[JesseWZ]

Somebody needs to swallow their pride and start shifting these charges into the civilian system ASAP...

It’s almost like you’ve met the DMP...

 

[FJAG]

Supreme Court tests the limits of military justice in rare appeal case

The question: do military courts have authority over serious crimes?
Murray Brewster · CBC News · Posted: Mar 26, 2019 4:00 AM ET

The Supreme Court of Canada debates today whether the Canadian military has the constitutional authority to try its own members for serious crimes like sexual assault and murder — a case that some legal observers are calling a once-in-a-generation event.

A military appeals court ruled last fall that the inability of soldiers, sailors and aircrew to elect trial by jury for serious crimes (those punishable by five years or more in prison) under the military justice system amounts to a violation of the Charter of Rights and Freedoms.

The ruling in the sexual assault case of Master-Cpl. Raphael Beaudry has turned the world of courts martial upside-down and led to a number of cases being adjourned, postponed or pushed off to the civilian court system.

...

See rest of article here:

https://www.cbc.ca/news/politics/supreme-court-military-justice-court-martial-1.5071218

op:

 

[TimneyTime]

Nice to know that retiring and commenting on things military completely outside my area of knowledge is a legitimate retirement option.

I've read all the CM transcripts form the last few years, and I have to say they seem incredibly fair and even handed.  Noticed that the ones that bring up constitutional issues and other similar challenges also seem to be the ones that are obviously guilty.

Having said that, I also don't see any really good reason why not kick something over to the civilian authority if it is a serious crime committed in Canada (that just happens to have a military member involved) unless there is some kind of operational security issue (like the Deslisle case, which probably should have been a CM).

It's kind of hard to side with the CF courts martial system when you've got people at the highest levels committing fraud.

https://globalnews.ca/news/4889893/canada-military-judge-fraud/

 

[SeaKingTacco]

It's kind of hard to side with the CF courts martial system when you've got people at the highest levels committing fraud.

https://globalnews.ca/news/4889893/canada-military-judge-fraud/

I see. Because one person who is part of a system has allegedly (that is an important word, especially since the trial has not yet occurred) committed a crime, unrelated to the direct functioning of the system, the entire system of military justice is flawed?


Please tell me- what is your specific expertise with the military justice system? Have you ever taken a POCT or a charge laying course? Have you ever acted as an assisting officer or a presiding officer? Have you ever even attended a summary trial or a court martial as a spectator? Have you considered the difficulties that would be instantly created for both discipline and justice if a system of military justice did not exist?

 

[dapaterson]

As always, there's the rule of unintended consequences.

A CAF member charged under NDA 130(a) has the right to a lawyer from Defence Counsel Services, at no cost.

A CAF members charged by city police in a civilian court has to pay for their own lawyer.


Pushing more trials to the civilian system also pushes more cost to the accused CAF members.

 

[Haggis]

As always, there's the rule of unintended consequences.

A CAF member charged under NDA 130(a) has the right to a lawyer from Defence Counsel Services, at no cost.

A CAF members charged by city police in a civilian court has to pay for their own lawyer.

Would not a CAF member charged by the CAF under whatever NDA 130(a) becomes and diverted to the civilian courts still have access to counsel from DCS?

 

[dapaterson]

Would not a CAF member charged by the CAF under whatever NDA 130(a) becomes and diverted to the civilian courts still have access to counsel from DCS?

No.  Per the NDA, "249.17 A person who is liable to be charged, dealt with and tried under the Code of Service Discipline has the right to be represented in the circumstances and in the manner prescribed in regulations made by the Governor in Council."

If the charge is not under the Code of Service Discipline, they would not be covered.  Thus, charged in a civilian court under the Criminal Code would not be covered.

See also QR&O 101.10 through 101.12.

 

[Haggis]

Yup, got that, dapaterson, but let me restate the question a bit with an example, situated in a future post NDA 130(a).

Would not a CAF member charged by the CAF under whatever NDA 130(a) becomes and diverted to the civilian courts still have access to counsel from DCS?

Right now a member could be charged by the CAF with say, unsafe storage of a personal firearm in a PMQ (CCC 86(2)), a hybrid offence.  The offence has a clear military nexus in that it's alleged to have occurred on a defence establishment. The charge would be laid by the MP.  The charge is then diverted to the civilian system when the member elected trial by jury in the absence of NDA 130(a), it having been struck down.  Would DCS then be able to provide counsel?

 

[dapaterson]

If it's a charge under an act other than the NDA (and its subset, the CSD) then no, under the current construct, there is no authority for DDCS to offer support to the individual.

 

[FJAG]

If it's a charge under an act other than the NDA (and its subset, the CSD) then no, under the current construct, there is no authority for DDCS to offer support to the individual.

Ditto with a small reservation. Under s 249.19, the charge must be under the CSD for DDCS to become engaged. There are offenses under the NDA which are not part of the CSD and where DDCS would not be engaged even now.

:cheers:

 

[dapaterson]

Thanks, good catch.  Misstatement on my part.

 

[SeaKingTacco]

No.  Per the NDA, "249.17 A person who is liable to be charged, dealt with and tried under the Code of Service Discipline has the right to be represented in the circumstances and in the manner prescribed in regulations made by the Governor in Council."

If the charge is not under the Code of Service Discipline, they would not be covered.  Thus, charged in a civilian court under the Criminal Code would not be covered.

See also QR&O 101.10 through 101.12.

Naturally, none of civilian lawyers currently calling for the CSD to be eviscerated and all charges to go into the provincial or federal court system would even think of profitting from that, right?