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



## putz (21 Sep 2018)

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 -_


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## brihard (21 Sep 2018)

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).


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## putz (21 Sep 2018)

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.


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## ModlrMike (21 Sep 2018)

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


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## garb811 (22 Sep 2018)

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.


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## ModlrMike (22 Sep 2018)

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)?


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## garb811 (22 Sep 2018)

ModlrMike said:
			
		

> 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.


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## FJAG (28 Sep 2018)

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:


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## FJAG (28 Sep 2018)

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:


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## kratz (28 Sep 2018)

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.


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## dapaterson (28 Sep 2018)

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.


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## ModlrMike (28 Sep 2018)

I am also inclined to agree with Justice Bell.


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## FJAG (29 Sep 2018)

dapaterson said:
			
		

> 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
> 
> ...



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:


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## FJAG (9 Oct 2018)

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:


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## OldSolduer (9 Oct 2018)

FJAG said:
			
		

> 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?


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## Navy_Pete (9 Oct 2018)

FJAG said:
			
		

> I include this article just for completeness of what's being said.
> 
> Personally, typos aside, I find his comments and arguments simplistic and naive.
> 
> ...



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).


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## dapaterson (9 Oct 2018)

Hamish Seggie said:
			
		

> 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).


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## FJAG (9 Oct 2018)

Navy_Pete said:
			
		

> 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;
> 
> ...



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:


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## garb811 (14 Dec 2018)

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)


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## ModlrMike (14 Dec 2018)

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.


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## FJAG (14 Dec 2018)

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:


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## Navy_Pete (19 Dec 2018)

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?


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## dapaterson (19 Dec 2018)

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...


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## garb811 (19 Dec 2018)

Navy_Pete said:
			
		

> 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?
> 
> ...


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.


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## FJAG (19 Dec 2018)

Navy_Pete said:
			
		

> . . .
> 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:


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## Navy_Pete (20 Dec 2018)

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.


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## JesseWZ (16 Jan 2019)

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


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## garb811 (16 Jan 2019)

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


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## JesseWZ (16 Jan 2019)

garb811 said:
			
		

> 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...


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## FJAG (26 Mar 2019)

> 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
> ...



See rest of article here:

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

op:


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## TimneyTime (26 Mar 2019)

Navy_Pete said:
			
		

> 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/


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## SeaKingTacco (26 Mar 2019)

TimneyTime said:
			
		

> 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?


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## dapaterson (26 Mar 2019)

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.


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## Haggis (26 Mar 2019)

dapaterson said:
			
		

> 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?


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## dapaterson (26 Mar 2019)

Haggis said:
			
		

> 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.


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## Haggis (26 Mar 2019)

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



			
				Haggis said:
			
		

> 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?


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## dapaterson (26 Mar 2019)

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.


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## FJAG (26 Mar 2019)

dapaterson said:
			
		

> 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:


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## dapaterson (26 Mar 2019)

Thanks, good catch.  Misstatement on my part.


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## SeaKingTacco (26 Mar 2019)

dapaterson said:
			
		

> 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?


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## dapaterson (26 Mar 2019)

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


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## FJAG (26 Mar 2019)

dapaterson said:
			
		

> 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:


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## dapaterson (26 Mar 2019)

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


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## FJAG (26 Mar 2019)

dapaterson said:
			
		

> 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:


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## brihard (26 Jul 2019)

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.


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## Navy_Pete (26 Jul 2019)

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.


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## FJAG (26 Jul 2019)

Navy_Pete said:
			
		

> ...
> 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:


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