A military appeals court tribunal has delivered a ruling that has caused shock waves in the Canadian military justice and court martial system. (Frédéric Peing-Radio-Canada)

Major court decision shakes military justice system


Certain court martials declared unconstitutional.

A military appeals court has made a ruling with major implications for Canada’s military justice system. Last week the tribunal ruled that certain types of criminal cases are beyond the purview of the court martial system which it said should be limited to cases “which are essentially military in nature”. Thus major criminal cases would be unconstitutional to be heard by the military.

The case dates back to 2014 when a soldier, a Master Corporal, was charged and found guilty by a court martial of sexual assault causing bodily harm.

Under Canada’s Charter of Rights and Freedoms, anyone charged with an offence carrying a prison penalty of five years or greater,can request trial by jury.

However, the National Defence Act (s 130-1-a) says major civil cases can be tried under military justice even if unrelated to military service.

The soldier had requested trial by jury, but was denied by the military court.

This was appealed, and the case had been joined to others involving military members which been agreed to be heard by Canada’s Supreme Court (SCC) as to whether military members have a right to trial by jury and whether the section 130 (1)(a) of the National Defence Act is an unjustified violation of the Charter of Rights and Freedoms. That case (R v Stillman et al) is currently scheduled to be heard sometime this spring.

Last week, the military appeals tribunal ruled 2-1 that serious civil crimes are not offences which fall under military law.

This major change in military justice does not however affect crimes specific to military service, nor crimes committed by service members on duty abroad.

The decision affects about 40 other similar cases which are now in limbo.

The military’s top prosecutor has asked the SCC to hold off on it’s decision and instead allow the original military process to continue in those cases.

Col. Bruce McGregor, Director of Military Prosecutions quoted in The Lawyers Daily said. “the parties, including parties to cases currently within the military justice system, would suffer greater harm if the suspension is refused”. This is due to to another Supreme Court ruling (Jordan Decision) of 2016 saying cases must be tried within a reasonable delay, and set time limits. Several civil cases in Canada were dismissed because of excess time delays.

Col McGregor noted that without a Supreme Court delay those 40 serious cases currently in the military system would have them redirected into an overburdened civil system further resulting in an “:undesirable delays and jeopardising the ability to try these cases on their merits and not meeting the speedy requirements of the R v Jordan”.

The ruling of unconstitutionality in the case of the Master Corporal had already interrupted three other serious military cases

The dissenting voice on the military appeals tribunal Chief Justice Richard Bell said that there is not contradiction in the military system and the Charter because Parliament knew what is was doing when in made the military exemption. “In this case, Parliament established a military justice system that includes independent bureaus of prosecution and defence, independent military judges … independent Court Martial Administrator, and appeals to this court and then to the Supreme Court of Canada. One would wonder why Parliament would establish such a complex system if the goal of the Charter was to exclude the vast majority of offences in the Code of Service Discipline from the jurisdiction of the military justice system”.

While the military prosecutors work to save the court martial system, other military law experts say that in such serious criminal cases, the soldiers should be considered citizens first and be allowed access to the civil justice system.

Additional information-sources

Categories: Politics, Society
Tags: , , , , ,

Do you want to report an error or a typo? Click here!

@*@ Comments

Leave a Reply

Your email address will not be published. Required fields are marked *

 characters available

Note: By submitting your comments, you acknowledge that Radio Canada International has the right to reproduce, broadcast and publicize those comments or any part thereof in any manner whatsoever. Radio Canada International does not endorse any of the views posted. Your comments will be pre-moderated and published if they meet netiquette guidelines.

Netiquette »

When you express your personal opinion in an online forum, you must be as courteous as if you were speaking with someone face-to-face. Insults and personal attacks will not be tolerated. To disagree with an opinion, an idea or an event is one thing, but to show disrespect for other people is quite another. Great minds don’t always think alike—and that’s precisely what makes online dialogue so interesting and valuable.

Netiquette is the set of rules of conduct governing how you should behave when communicating via the Internet. Before you post a message to a blog or forum, it’s important to read and understand these rules. Otherwise, you may be banned from posting.

  1. RCInet.ca’s online forums are not anonymous. Users must register, and give their full name and place of residence, which are displayed alongside each of their comments. RCInet.ca reserves the right not to publish comments if there is any doubt as to the identity of their author.
  2. Assuming the identity of another person with intent to mislead or cause harm is a serious infraction that may result in the offender being banned.
  3. RCInet.ca’s online forums are open to everyone, without regard to age, ethnic origin, religion, gender or sexual orientation.
  4. Comments that are defamatory, hateful, racist, xenophobic, sexist, or that disparage an ethnic origin, religious affiliation or age group will not be published.
  5. In online speak, writing in ALL CAPS is considered yelling, and may be interpreted as aggressive behaviour, which is unpleasant for the people reading. Any message containing one or more words in all caps (except for initialisms and acronyms) will be rejected, as will any message containing one or more words in bold, italic or underlined characters.
  6. Use of vulgar, obscene or objectionable language is prohibited. Forums are public places and your comments could offend some users. People who use inappropriate language will be banned.
  7. Mutual respect is essential among users. Insulting, threatening or harassing another user is prohibited. You can express your disagreement with an idea without attacking anyone.
  8. Exchanging arguments and opposing views is a key component of healthy debate, but it should not turn into a dialogue or private discussion between two users who address each other without regard for the other participants. Messages of this type will not be posted.
  9. Radio Canada International publishes contents in five languages. The language used in the forums has to be the same as the contents we publish or in one of the two official languages, English or French. The usage of other languages, with the exception of some words, is forbidden. Messages that are off-topic will not be published.
  10. Making repetitive posts disrupts the flow of discussions and will not be tolerated.
  11. Adding images or any other type of file to comments is forbidden. Including hyperlinks to other websites is allowed, as long as they comply with netiquette. Radio Canada International  is in no way responsible for the content of such sites, however.
  12. Copying and pasting text written by someone else, even if you credit the author, is unacceptable if that text makes up the majority of your comment.
  13. Posting any type of advertising or call to action, in any form, to Radio Canada International  forums is prohibited.
  14. All comments and other types of content are moderated before publication. Radio Canada International  reserves the right to refuse any comment for publication.
  15. Radio Canada International  reserves the right to close a forum at any time, without notice.
  16. Radio Canada International  reserves the right to amend this code of conduct (netiquette) at any time, without notice.
  17. By participating in its online forums, you allow Radio Canada International to publish your comments on the web for an indefinite time. This also implies that these messages will be indexed by Internet search engines.
  18. Radio Canada International has no obligation to remove your messages from the web if one day you request it. We invite you to carefully consider your comments and the consequences of their posting.