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

[putz]

https://www.thelawyersdaily.ca/articles/7379

In a legal earthquake for the military justice system, the Court Martial Appeal Court of Canada (CMAC) has split 2-1 to strike down s. 130(1)(a) of the National Defence Act (NDA) because the majority held that the provision — which deems Criminal Code offences committed in Canada by military members to be “service offences” — deprives military accused of their Charter s. 11(f) right to trial by jury.

- mod edit to tighten up title -

 

[brihard]

I saw that... Short version (FJAG of course may correct me on details): Any non-NDA offense for which the maximum penalty is five years or more in prison, you have the right to a trial. The CMAC has ruled that we have this right too. The ‘so what’ is that courts martial effectively can no longer try criminal offenses under civilian law (eg Crim Code, Controlled Drugs and Substances Act) for which one could receive five years or more. What I’m not sure of is where this leaves hybrid offenses (eg sexual assault; assault) where they don’t want to proceed by indictment. I don’t know how the military justice system deals with hybrid offenses under 130(1)(a).

 

[putz]

My understanding is hybrid offences would be treated as indictable.  Ergo at this time civy side court vs MJS.  I'm honestly suprised it took this long for a decision like this to come out.

 

[ModlrMike]

Easy fix: CM trial by a jury of one's peers.

That being said, it might be difficult to select an impartial jury of solely military members, due to our innate dislike of law breakers. The nearest examples that I could find elsewhere are:

UK - CM before a JAG, and a panel of 3-7 officers and warrant officers
AUS - (currently under revew) Military judge with jury
US - no right to a jury trial, CM before a judge and a panel of 3 pers senior in rank (by date) to the accused
FIN - crimes with military jurisdiction are handled by the civilian district court which has a special composition. In military cases, the court consists of a civilian legally trained judge and two military members: an officer and a warrant officer, an NCO or a private soldier. The verdict and the sentence are decided by a majority of votes
GER - German soldiers are tried exclusively before civil courts

 

[garb811]

From my point of view:

1) The implied decision here is that a GCM does not equate to a trial by judge and jury as it was a blanket ruling and wasn't just confined to SCMs. I haven't looked but, if I recall correctly, there is case law starting a GCM equates to a trial by a judge and jury when others have argued a "panel of five officers" did not meet that threshold.

2) 130(1)(b) still stands, so if the offence occurs outside Canada, it is still in play in the military justice system.

130 (1) An act or omission
...
(b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part VII, the Criminal Code or any other Act of Parliament,

is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2).

3) Appeal in 3...2...1...

4) I wouldn't be heartbroken to see 130(1)(a) gone forever.  There is no justification for it and it creates a two tier justice system.

 

[ModlrMike]

If we did away with s.130, would that not then produce potentially two trials? One for the service offence(s), and another for the CC offence(s)? Or is it proposed that in this instance, the civilian court would rule on both the service and CC offence(s)?

 

[garb811]

If we did away with s.130, would that not then produce potentially two trials? One for the service offence(s), and another for the CC offence(s)? Or is it proposed that in this instance, the civilian court would rule on both the service and CC offence(s)?

The CMAC considered a civil court ruling on NDA offences as a valid COA I think:

The NDA provides the possibility of applying the Code of Service Discipline, whether the member is tried before a service or civil tribunal. Subsection 130(4) reads as follows:

130(4) Nothing in this section is in derogation of the authority conferred by other sections of the Code of Service Discipline to charge, deal with and try a person alleged to have committed any offence set out in sections 73 to 129 and to impose the punishment for that offence described in the section prescribing that offence.

I'm not sure how many of those events we will see happening though because the whole charge laying process for MP has just flipped. Before this we were directed to keep almost everything within the military justice system except for domestics and impaired driving.  Otherwise if we wanted to lay a charge downtown we needed the concurrence of the accused's CO with input from the JAG world. As going with 130 in Canada is no longer an option, as Peace Officers we have the authority to lay the applicable Criminal Code charges ourselves (or recommend them directly to the Crown in those provinces where that happens) whereas we can still only recommend CSD charges. My guess is we will just lay the Criminal Code charge(s) and go from there without worrying about CSD charges. That isn't a huge deal (from my point of view) as a lot of the CSD offences have equal, or similar, Criminal Code charges.

This also allows us to release the accused with conditions or remand them into custody without the need for a CRO.

I'm sure this is going to cause all kinds of angst though as the chain of command just lost a huge amount of input into things so it will be interesting to see the direction that comes out.

The bigger question that arises in my mind is what is going to happen to all of the outstanding 130s.  13 of the 19 Courts Martial currently scheduled have a 130 in them. Either those 130s are getting dropped with the CM going ahead on the purely NDA offences or they are going to get diverted into an already overloaded civilian system with the Jordan clock already well advanced which will make a bunch of Crown Attorneys pretty cranky I think.

 

[FJAG]

FYI - Court drops bomb by ruling against constitutionality of military justice system

https://www.cbc.ca/news/politics/court-charter-rights-forces-1.4843540

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

Reading it now. More later.

:cheers:

 

[FJAG]

Okay. I've now read the judgment and am totally in agreement with the dissent written by the Chief Justice.

Seems to me that the majority got a little carried away with themselves. I don't think their decision will stand up in front of the SCC.

:cheers:

 

[kratz]

FJAG,

Thank you for wading reading through the decision and offering your opinion.

I can read and understand legal acts, but interrupting the rational behind decisions is more challenging. 

 

[dapaterson]

I am uncertain.  I feel that while his dissent would not be out in of line with the obsessive stare decisis of some SCC rulings ("despite the plain language of the Constitution, no Quebec beer in New Brunswick"), para 55 asks the fundamental question: if the Act refers to s130 as Service trial of civil offences, then the Act explicitly recognizes that such offenses are civil, not military, and thus are protected by 11f.

 

[ModlrMike]

I am also inclined to agree with Justice Bell.

 

[FJAG]

I am uncertain.  I feel that while his dissent would not be out in of line with the obsessive stare decisis of some SCC rulings ("despite the plain language of the Constitution, no Quebec beer in New Brunswick"), para 55 asks the fundamental question: if the Act refers to s130 as Service trial of civil offences, then the Act explicitly recognizes that such offenses are civil, not military, and thus are protected by 11f.

The general statutory interpretation rule as to headings is that they can be taken into consideration by a court where the text is ambiguous.  The text, however is not ambiguous:

130 (1) An act or omission

(a) that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, or

(b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part VII, the Criminal Code or any other Act of Parliament,

is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2).

In short, the text stipulates that an act or omission that is punishable under the CCC and other Federal laws is also an offence within the CSD. The provision makes it a military service offence.

:cheers:

 

[FJAG]

I include this article just for completeness of what's being said.

Personally, typos aside, I find his comments and arguments simplistic and naive.

https://www.macleans.ca/opinion/a-landmark-ruling-on-military-courts-means-the-forces-must-change-for-the-better/

:cheers:

 

[OldSolduer]

Okay. I've now read the judgment and am totally in agreement with the dissent written by the Chief Justice.

Seems to me that the majority got a little carried away with themselves. I don't think their decision will stand up in front of the SCC.

:cheers:

Do you think the CAF going will appeal?

 

[Navy_Pete]

I include this article just for completeness of what's being said.

Personally, typos aside, I find his comments and arguments simplistic and naive.

https://www.macleans.ca/opinion/a-landmark-ruling-on-military-courts-means-the-forces-must-change-for-the-better/

:cheers:

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).

 

[dapaterson]

Do you think the CAF going will appeal?

Already done, and already requested that the ruling be put in abeyance until the Supreme Court rules.

Note that this does not affect 130(b) - breaking non-NDA law outside Canada; the ruling applied exclusively to 130(a).

 

[FJAG]

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).

There is absolutely nothing wrong with that concept. In fact, s70 of the NDA does exactly that. It provides:

70. A service tribunal shall not try any person charged with any of the following offences committed in Canada:

(a) murder;

(b) manslaughter; or

(c) an offence under any of sections 280 to 283 of the Criminal Code

The issue which we are really looking at is where do we draw the line. It seems that the Parliament of Canada has drawn the line with s70. S70 offences go to civilian courts, everything else can go to a service tribunal.

A lot of folks on this board are constantly arguing that this type of decision is one for the legislatures and not the judiciary. In this particular case I completely agree with them. IMHO, judges shouldn't adopt thin arguments dreamed up by a desperate defence counsel as a Hail Mary to get their clients off.

:cheers:

 

[garb811]

Interesting analysis of the current state of affairs from the view of a Military Judge in a Decision on Plea In Bar of Trial where the defendant had moved to have the proceedings terminated due to lack of jurisdiction as a result of Beaudry...

R v Ryan D.J. (Leading Seaman)

 

[ModlrMike]

I think this outcome is appropriate. As the Beaudry case is before the SCC, there is still a possibility that the CMAC decision could be overturned, and therefore any rulings on that decision could also be overturned.

Short version: wait until Beaudry is settled before the SCC.