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

[dapaterson]

Oddly, the lawyers arguing against 130(a), as far as I know, are military...

 

[FJAG]

Oddly, the lawyers arguing against 130(a), as far as I know, are military...

Quite correct.

Back in the day when I was still doing some prosecuting (and defending occasionally -- in those days prosecutors were one of the DJA's from the region where the offender was from and the defending officer was a DJA who came from some other region in Canada) military defending officers (who are government salaried officers) spent considerably more time researching and preparing for a trial (even the relatively minor ones) than any private firm lawyer would have available or would charge the client for. As a result there would be numerous "Hail Mary" pleas in bar of trial thrown out at the beginning of each trial. It's still that way and is a by-product of the fact that we have so few trials and so many lawyers involved in prosecutions and defence that each prosecutor and defending officer a) has a very low case load (really, it's a tiny, tiny fraction of what civilian prosecutors and defence counsel have); and therefore b) can spend an inordinate amount of time spinning legal arguments up the wazoo.

It's purely my guess that the s 130 application in this case was exactly one of those things that probably nobody, including the DDCS defending officers, expected to actually succeed.

:cheers:

 

[dapaterson]

I seem to recall that a similar motion had been rejected multiple times in the past by other courts.

 

[FJAG]

I seem to recall that a similar motion had been rejected multiple times in the past by other courts.

Yup. There had been several such pleas in bar at the court martial level in the past (I'm not going to hunt them down). The Royes decision was (IMHO) a definite rejection of the argument by the CMAC. At the CMAC level there has been the Dery case (including the Stillman case and several others all heard together with Dery) which was decided subsequent to Royes  The leading cases are discussed in the Beaudry decision itself:

https://decisions.cmac-cacm.ca/cmac-cacm/cmac-cacm/en/item/344716/index.do

Also see the Dery decision:

https://decisions.cmac-cacm.ca/cmac-cacm/cmac-cacm/en/item/231524/index.do

As well as that of Stillman whose case was also heard by the SCC together with the Beaudry appeal:

https://decisions.cmac-cacm.ca/cmac-cacm/cmac-cacm/en/item/363697/index.do?q=stillman

:cheers:

 

[brihard]

Just breaking: the SCC in a 5-2 decision has upheld the military justice system as it stands. Members facing the military justice system do not have the right to a jury trial. I look forward to reading the decision.

https://www.cbc.ca/news/politics/supreme-court-military-constitution-justice-1.5226104

The SCC’s written decision here.

 

[Navy_Pete]

Still reading through the details, but if I read this right, all the justices agreed that there is no inherent charter violation for CM not having juries and that the exemptions are reasonable, practical and what was intended when Parliament approved the legislation. They also highlight that the CMJS has evolved into something proceduarally fair that more or less mirrors the civvie system but works within the military context, and includes the military panel which is similar to a jury.

The two dissenting opinions where basically that the offenses should have a direct military connection, so that should be part of the prosecutor's test when they decide to kick it over to the civilian system or not.

Both positions are pretty reasonable, and glad this one got upheld. By and large, think our system is fair, and this would have broken it.

Pretty interesting history lesson too; had no idea about some of the changes that happened in the 90s.

 

[FJAG]

...
Pretty interesting history lesson too; had no idea about some of the changes that happened in the 90s.

There were a number of things coming together in the 90s including several Charter based decisions and the Somalia inquiry and the resulting Dickson report. In short JAG took over much of the floor underneath their office in the Constitution Bldg and moved a large number of their legal officers and staff down there to work full-time to address all of those issues with new legislation, regulations and processes.  I played a small role in that process as part of the study group that focused on the future defence counsel structure (reg? res? civilian? hybrid? etc?) Overall, it was a massive undertaking and Bill C-25 was their legislative output. The implementation of the outputs was monitored by the ongoing Lamer and LeSage reviews/reports and fine tuned over the years.

JAG stays proactive on these issues. The previous JAG commenced a Court Martial Comprehensive Review in 2016 and an interim report was provided to the current JAG in 2017. The CMCR is considered concluded. Instead of finalizing the CMCR, JAG staff are now collaborating with the Auditor General on an audit of the military justice system which will provide a better methodology nd more extensive metrics and analytics upon which to base proactive adjustments to the system. While that process is ongoing, several issues identified have already been addressed or earmarked for action.

Edited to add: If there's one thing that the CMAC decision in Beaudry has done it's to allow the SCC to restate in excellent detail that parliament has decided in it's infinite wisdom to enact a generally sound military justice system. The direct challenge on s 130 has clearly been rejected as has the minority's attempt to resurrect any concept of a "military connection" as a necessity for the military to take jurisdiction of a given case: military status is enough.

On top of that is a substantial amount of "obiter" in the decision respecting the legitimacy of military justice law that ought to forestall critics of the system.

As an aside, I have some mixed feelings about Bill C-77 which makes some substantial changes to the Summary Trial system. The conversion to a "Summary Hearing" and the removal of "penal consequences" was in my mind unnecessary but at least I can understand why those advocating for that did so. On top of that I note that the statistics on summary trials for 2017-8 indicate that out of 782 summary trial convictions only 8 cases resulted in detention and three of those were suspended. In addition reduction in rank is till an available punishment and that is a very considerable one. I have a number of open questions about some of the details under the new Summary Hearing system but I'll keep those to myself until I see the enacted regulations which will probably clear my questions up.

Being the cynic that I am I see these changes as an attempt to generate a few more referrals to courts martial because CO's feel that they 'might have imposed detention' and now can't so therefore refer. More work for lawyers and judges. :stirpot:

:cheers: