Trudeau trying to change the rules for military tribunals in Canada
The Supreme Court of Canada has rejected the federal government’s motion to temporarily stay a Charter ruling which has gutted the military justice system.
After hearing oral arguments from a Canadian Armed Forces (CAF) prosecutor and a military defence lawyer Jan. 14, a five-judge panel presided over by Supreme Court Justice Clément Gascon dismissed from the bench, without reasons, the motion of the CAF’s Director of Military Prosecutions (DMP) to stay last fall’s ruling until the top court hears an appeal on the merits March 26 and decides the case: R. v. Beaudry.
The Supreme Court will decide whether to affirm the Court Martial Appeal Court’s (CMAC) Sept. 19 majority judgment in R. v. Beaudry which struck down s. 130(1)(a) of the National Defence Act (NDA) as a violation of military members’ Charter right to trial by jury: 2018 CMAC 4.
Lt.-Col. Jean-Bruno Cloutier
The effect of Beaudry was to wipe out the CAF’s ability to prosecute any civilian crimes and offences for which the maximum sentence is five years or more, including dozens of the most serious crimes under the Criminal Code — including sexual assaults.
The applicant Crown “did not meet the burden of proving that the balance of convenience was in favour of suspending the declaration of invalidity,” remarked defence counsel, Lt.-Col. Jean-Bruno Cloutier. “The impact of it is that, until the Supreme Court of Canada says otherwise, military courts do not have jurisdiction to try serious civil offences, including sexual assault and other serious crimes,” he told The Lawyer’s Daily.
Co-counsel Mark Letourneau, who argued against the motion at the Supreme Court, said military prosecutors have a number of options in the meantime, including referring existing cases to the civilian courts for prosecution, or withdrawing the criminal charges and prosecuting them instead as disgraceful conduct under the NDA.
During the hearing, Justice Gascon noted the urgency of deciding the government’s stay motion immediately, in light of the DMP’s assertions that the clock is ticking on 35 pending criminal prosecutions — 21 of them sexual assaults — which could be at risk of being dismissed for violating the Charter right to a speedy trial if not dealt with expeditiously while the military’s authority to prosecute serious crimes is in constitutional limbo.
The DMP, Col. Bruce MacGregor, told The Lawyer’s Daily he has not referred any of those cases to civilian courts for prosecution. Since Beaudry, eight cases have been converted to National Defence Act charges — with five resulting guilty pleas, and three cases remaining to be tried, he said.
“The issue of whether section 130(1)(a) of the NDA violates the Charter right to a trial by jury is an extremely important one,” MacGregor stressed via e-mail. “As was stated by [CMAC] Chief Justice [Richard] Bell, the answer to this question will determine the future of the military justice system in Canada.”
MacGregor added that “while the [Supreme] Court did not grant the motion, I wish to assure the women and men of the Armed Forces, and all Canadians, that the military justice system continues to perform its critical role in maintaining the discipline, efficiency and morale of the CAF. We will continue to consider all possible options to ensure that any impacted cases move forward expeditiously and are prosecuted to the fullest extent of the law.”
MacGregor emphasized that the interests of victims and survivors are his “highest priority.”
“I will continue to ensure that they are actively informed and consulted in all cases,” he said. “I also remain mindful of the need to proceed with all cases in a timely manner, and [of] the right of accused persons to be tried within a reasonable time, as set out in the Supreme Court decision in the Jordan case. These vital considerations continue to guide all of my actions and decisions in this matter.”
MacGregor disclosed that of the 35 cases so far impacted by Beaudry, 22 involve sexual offences, three are drug-related, seven involve fraud or theft, and the remaining three charges are obstructing a peace officer, uttering threats and simple assault. Charges have been withdrawn in a further two cases.
The DMP argued that a temporary stay was needed to preserve military discipline.