R v Royes, 2013 CM 4032

COURT MARTIAL Citation: R v Royes, 2013 CM 4032 Date: 20131204 Docket: 201339 Standing Court Martial Canadian Forces Base Wainwright Denwood, Alberta, Canada Between: Her Majesty the Queen - and - Master Corporal D.D. Royes, Applicant Presiding: Lieutenant-Colonel J.G. Perron, M.J. RESTRICTION ON PUBLICATION Restriction on publication: By court order made under

section 179 of the National Defence Act and

section 486.4 of the Criminal Code , information that could disclose the identity of the person described in this judgment as the complainant or any other witness shall not be published in any document or broadcast or transmitted in any way. REASONS FOR DECISION (Rendered orally) [ 1 ] The applicant, Master Corporal Royes, is charged under

section 130 of the National Defence Act of having committed a sexual assault contrary to

section 271 of the Criminal Code of Canada . He has made an application under subparagraph 112.05(5)(

e) of the Queen's Regulations and Orders for the Canadian Forces ( QR&

O) and is seeking an order declaring that subparagraph 130(1)(

a) of the National Defence Act (the NDA ) to be of no force or effect pursuant to

section 52 of the Constitution Act , 1982 because it is inconsistent with

section 7 of the Canadian Charter of Rights and Freedoms , (the Charter ) and cannot be saved by

section 1 of the Charter . He also requests at page 4 of his notice of application that he be acquitted.

[2] The application was heard at the end of the prosecution's case. Counsel suggested the court render its decision before the defencepresented its case. The evidence is composed essentially of the following: judicial notice under Military Rule of Evidence 15 and thetestimony of the five prosecution witnesses. [3] Firstly, I will review the facts in this application. It is alleged that Master Corporal Royes left a bar in the town of Wainwright atapproximately 0200 hours on 12 February 2012 with the complainant and two friends.

The complainant was inebriated to the point thatshe could not tell her fellow soldiers where she resided on Canadian Forces Base (CFB) Wainwright. She was brought to MasterCorporal Royes' room at CFB Wainwright. Master Corporal Royes would have had sexual intercourse with the complainant without herconsent.

Master Corporal Royes would then have driven the complainant to her room on base the morning of 12 February. [4] Counsel for the applicant has indicated this application is identical to the applications presented in various courts martial such asR v Moriarity, 2012 CM 3017, 18 October 2012; R v Arsenault, 2013 CM 4006, 23 April 2013; and R v Hannah, 2013 CM 2011, 15 May2013. He is not presenting any new substantive legal argument. Counsel for the respondent has also not presented any new substantivelegal argument.

The only difference between this application and the previous ones are the specific facts of the case and the exactoffences charged. [5] In Arsenault, I quoted the following passage from Chief Justice Lamer's decision in R v Généreux (SCC),[1992] 1 SCR 259 at paragraph 31 when he addressed the dual purposes of the Code of Service Discipline: Although the Code of Service Discipline is primarily concerned with maintaining discipline and integrity in the Canadian Armed Forces,it does not serve merely to regulate conduct that undermines such discipline and integrity.

The Code serves a public function as well bypunishing specific conduct which threatens public order and welfare....Service tribunals thus serve the purpose of the ordinary criminalcourts, that is, punishing wrongful conduct, in circumstances where the offence is committed by a member of the military or other personsubject to the Code of Service Discipline.

Indeed, an accused who is tried by a service tribunal cannot also be tried by an ordinarycriminal court (ss. 66 and 71 of the National Defence Act). [6] Later in that decision, Chief Justice Lamer described the purpose of a system of military tribunals at paragraph 60 as follows: The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to thediscipline, efficiency and morale of the military.

The safety and well-being of Canadians depends considerably on the willingness andreadiness of a force of men and women to defend against threats to the nation's security. To maintain the Armed Forces in a state ofreadiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline mustbe dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct. As a result,the military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs.

In addition, special servicetribunals, rather than the ordinary courts, have been given jurisdiction to punish breaches of the Code of Service Discipline. Recourse tothe ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military. There isthus a need for separate tribunals to enforce special disciplinary standards in the military. I agree, in this regard, with the comments ofCattanach J. in MacKay v.

Rippon, (FC), [1978] 1 F.C. 233 (T.D.), at pp. 235-36: Without a code of service discipline the armed forces could not discharge the function for which they were created. In all likelihoodthose who join the armed forces do so in time of war from motives of patriotism and in time of peace against the eventuality of war. Tofunction efficiently as a force there must be prompt obedience to all lawful orders of superiors, concern, support for and concerted actionwith their comrades and a reverence for and a pride in the traditions of the service.

All members embark upon rigorous training to fitthemselves physically and mentally for the fulfilment of the role they have chosen and paramount in that there must be rigid adherence todiscipline. Many offences which are punishable under civil law take on a much more serious connotation as a service offence and as such warrantmore severe punishment. Examples of such are manifold such as theft from a comrade. In the service that is more reprehensible since itdetracts from the essential esprit de corps, mutual respect and trust in comrades and the exigencies of the barrack room life style.

Againfor a citizen to strike another a blow is assault punishable as such but for a soldier to strike a superior officer is much more seriousdetracting from discipline and in some circumstances may amount to mutiny. The converse, that is for an officer to strike a soldier isalso a serious service offence. In civilian life it is the right of the citizen to refuse to work but for a soldier to do so is mutiny, a mostserious offence, in some instances punishable by death.

Similarly a citizen may leave his employment at any time and the only liabilityhe may incur is for breach of contract but for a soldier to do so is the serious offence of absence without leave and if he does not intendto return the offence is desertion.

[7] In reaching my decision in this application, I will repeat some of the passages of my decision in Arsenault. The Code of ServiceDiscipline is defined in

section 2 of the National Defence Act as being the provisions of

Part III of the Act.

Part III consists of sections60 to 249.26. The Code of Service Discipline assigns jurisdiction, creates offences, establishes arrest and detention powers, establishesservice tribunals, namely,

summary trials and courts martial, and other procedural measures necessary for the proper administration ofmilitary justice. In other words, these sections as well as Volume II of the Queen's Regulations and Orders for the Canadian Forcesgovern the application of military penal law. [8] Military tribunals are a part of the Code of Service Discipline but the Code of Service Discipline is much more than tribunals.

Section 130 creates a service offence consisting of

an act or omission that is punishable under

Part VII of the Act, the Criminal Code orany other Act of Parliament. It is not

section 130 that confers jurisdiction on a service tribunal but the Code of Service Discipline andmany sections of the NDA and the QR&O, but primarily sections 2, 60, 67, 68, 69, 130 and 173 of the National Defence Act in our case. [9] A Standing Court Martial may try any person who is liable to be charged, dealt with and tried on a charge of having committed aservice offence (see

section 173).

Section 60 describes who is subject to the Code of Service Discipline. Sections 67 and 68 establishterritorial jurisdiction for the commission of the offence and the place of trial.

Section 70 limits the jurisdiction of service tribunals to trycertain offences committed in Canada, namely, murder, manslaughter and abduction of children and persons under sixteen years of age. [10] As I stated in Arsenault, the purpose of the Code of Service Discipline is not as limited as the applicant suggests. The SupremeCourt of Canada also attributes a public function to it because the Supreme Court of Canada accepts that the military justice system playsthe same role as the civil criminal justice system, allowing service tribunals to punish conduct that threatens public order and welfare.

As indicated in paragraph 49 of R v Heywood (SCC), [1994] 3 S.C.R. 761, the court must consider whethersubparagraph 130(1)(

a) is necessary to achieve the State's objective. [11] Counsel for the applicant spent much time on the topic of the doctrine of the military nexus. As I stated in Arsenault: The issue of a military nexus was discussed in Her Majesty the Queen and Sergeant Reddick 1996 CMAC 393.

The proceeding beforethe Court Martial Appeal Court was an appeal concerning the application of subsection 60(2) of the National Defence Act to the trial of aretired member, hence a civilian at the time of trial, with respect to acts that were criminal offences and acts that were service offences.Although Reddick was primarily concerned with a question of the division of constitutional powers, the Court Martial Appeal Court,referring to the Généreux decision, stated at paragraph 28: I therefore conclude that the nexus doctrine has no longer the relevance or force which influenced many of the earlier decisions of thisCourt.

Indeed I think it can be put aside as distracting from the real issue which is one of the division of powers.

In addressing that issuea court martial must start by considering whether the Code of Service Discipline gives it jurisdiction in the circumstances alleged in thecharges. lf so, it can presume that the Code, as part of the National Defence Act, is constitutionally valid unless the accused candemonstrate that in his particular circumstances the application of the Code to him would have an unconstitutional consequence. [12] Trying by court martial an alleged sexual assault by a soldier upon another soldier on a military base clearly falls within thepurposes of maintaining discipline and integrity in the Canadian Armed Forces and of punishing specific conduct which threatens publicorder and welfare.

The court also finds that the facts of this case establish a clear military nexus should that doctrine still apply and thatthe applicant has failed to demonstrate that, in his particular circumstances, the application of the Code of Service Discipline would havean unconstitutional consequence. FOR THESE REASONS, THE COURT [13] DISMISSES the application. The respondent argued this application should have been presented under subparagraph 112.05(5)(

b) of the QR&O since the jurisdiction of the court is in issue and that this question has a bearing on the appropriate remedy. Havingdismissed the application on its merits, the court does not have to decide which exact provision of the QR&O and remedy are applicable. [14] The proceedings of this application are terminated. Counsel:

Major D. Hodson, Directorate of Defence Counsel Services Major E. Thomas, Directorate of Defence Counsel Services Counsel for the applicant Lieutenant-Commander S. Torani, Canadian Military Prosecution Services Major R.J. Rooney, Canadian Military Prosecution Services Counsel for the respondent