Master Corporal C.J. Stillman Appellant v. Her Majesty The Queen, 2019 SCC 40

SUPREME COURT OF CANADA Citation: R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144 Appeals Heard: March 26, 2019 Judgment Rendered: July 26, 2019 Dockets: 37701, 38308 Between: Master Corporal C.J. Stillman Appellant and Her Majesty The Queen Respondent And Between: Ex-Petty Officer 2nd Class J.K. Wilks Appellant and Her Majesty The Queen Respondent And Between: Warrant Officer J.G.A. Gagnon Appellant and Her Majesty The Queen Respondent And Between: Corporal F.P. Pfahl

Appellant and Canada (Minister of National Defence) Respondent And Between: Corporal A.J.R. Thibault Appellant and Her Majesty The Queen Respondent And Between: Second Lieutenant Soudri Appellant and Her Majesty The Queen Respondent And Between: K39 842 031 Petty Officer 2nd Class R.K. Blackman Appellant and Her Majesty The Queen Respondent - and - Advocates for the Rule of Law

Intervener And Between: Her Majesty The Queen Appellant and Corporal R.P. Beaudry Respondent - and - Advocates for the Rule of Law Intervener Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown and Rowe JJ. Joint Reasons for Judgment: (paras. 1 to 114) Moldaver and Brown JJ. (Wagner C.J. and Abella and Côté JJ. concurring) Joint Dissenting Reasons: (paras. 115 to 195) Karakatsanis and Rowe JJ. R. v. S tillman, 2019 SCC 40, [2019] 3 S.C.R. 144 Master Corporal C.J. Stillman Appellant v. Her Majesty The Queen Respondent - and - Ex-Petty Officer 2nd Class J.K. Wilks Appellant v.

Her Majesty The Queen Respondent - and - Warrant Officer J.G.A. Gagnon Appellant v. Her Majesty The Queen Respondent - and - Corporal F.P. Pfahl Appellant

v. Canada (Minister of National Defence) Respondent - and - Corporal A.J.R. Thibault Appellant v. Her Majesty The Queen Respondent - and - Second Lieutenant Soudri Appellant v. Her Majesty The Queen Respondent - and - K39 842 031 Petty Officer 2nd Class R.K. Blackman Appellant v. Her Majesty The Queen Respondent and Advocates for the Rule of Law Intervener - and - Her Majesty The Queen Appellant v. Corporal R.P. Beaudry Respondent and Advocates for the Rule of Law Intervener Indexed as: R. v. Stillman 2019 SCC 40 File Nos.: 37701, 38308. 2019: March 26; 2019: July 26.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown and Rowe JJ. on appeal from the court martial appeal court of canada Constitutional law — Charter of Rights — Right to trial by jury — Military exception — Armed forces — Military offences — Accused charged with offences under s. 130(1) (

a) of National Defence Act , which transforms criminal and other federal offences into service offences triable by military justice system — Accused denied jury trial based on military exception to constitutional right to trial by jury for offences where maximum punishment is imprisonment for five years or more — Whether s. 130(1)(

a) of National Defence Act is inconsistent with constitutional right to trial by jury in its application to serious civil offences — Whether service offence tried under s. 130(1)(

a) engages military exception such that right to trial by jury may be denied — Canadian Charter of Rights and Freedoms, s. 11(f) — National Defence Act, R.S.C. 1985, c. N-5, s. 130(1) (a). The accused persons, each a member of the Armed Forces at the relevant time, were charged with one or more service offences under s. 130(1) (

a) of the National Defence Act (“ NDA ”). Before various standing courts martial, all but one of the accused persons unsuccessfully asserted their right to a trial by jury under s. 11(

f) of the Charter ; maintained that the military exception found in that provision was not engaged in their circumstances; and claimed that, since s. 130(1)(

a) brought them within the military justice system (which does not provide for a trial by jury), it is inconsistent with their s. 11(

f) right. The appeals to the Court Martial Appeal Court resulted in two conflicting judgments: the accused persons’ appeals in R. v. Déry , 2017 CMAC 2 , 391 C.R.R. (2d) 156 (“ Stillman ”), were dismissed on the basis of horizontal stare decisis , and the appeal in R. v. Beaudry , 2018 CMAC 4 , 430 D.L.R. (4th) 557, was allowed, resulting in a declaration that s. 130(1) (

a) is inconsistent with s. 11(

f) of the Charter and is of no force or effect in its application to any civil offence for which the maximum sentence is imprisonment for five years or more (“serious civil offence”). Held (Karakatsanis and Rowe JJ. dissenting): The appeals in Stillman should be dismissed. The appeal in Beaudry should be allowed, the declaration that s. 130(1) (

a) of the NDA is of no force or effect in its application to any serious civil offence should be set aside, and the conviction restored.

Per Wagner C.J. and Abella, Moldaver, Côté and Brown JJ.: Section 130(1) (

a) of the NDA is not inconsistent with s. 11(

f) of the Charter . The words “an offence under military law” in s. 11(

f) refer to a service offence that is validly enacted pursuant to Parliament’s power over “Militia, Military and Naval Service, and Defence” under s. 91(7) of the Constitution Act, 1867 . The Court’s jurisprudence establishes that Parliament has validly enacted s. 130(1) (

a) of the NDA under this head of power. It also establishes that s. 130(1) (

a) is not overbroad under s. 7 of the Charter . Where, therefore, a serious civil offence is tried as a service offence under s. 130(1) (a), it qualifies as “an offence under military law”, thereby engaging the military exception in s. 11(

f) of the Charter . Generally speaking, the same core interpretive principles that apply to rights stated in the Charter also apply to exceptions stated in the Charter . They are to be read purposively, rather than in a technical or legalistic fashion. Just as courts must take care not to overshoot the purpose of a Charter right by giving it an unduly generous

interpretation, so too must they be careful not to undershoot the purpose of a Charter exception by giving it an unduly narrow

interpretation. Since a Charter exception can be understood only if the right it qualifies is understood, courts should consider the two together. The right to a trial by jury serves two main purposes. At the individual level, it protects the accused by giving him or her the benefit of a trial by his or her peers. Since the right is held by the accused, this individual dimension is of utmost importance. At the societal level, it provides a vehicle for public education about the criminal justice system and lends the weight of community standards to trial verdicts. Notwithstanding the significance of these twin purposes, the right to a jury trial is not absolute. Rather, s. 11(

f) of the Charter carves out an internal exception to this right that applies to “an offence under military law tried before a military tribunal” (in French, “ une infraction relevant de la justice militaire ”). The inclusion of this military exception in s. 11(

f) shows that the Charter contemplates a parallel system of military justice designed to foster discipline, efficiency, and morale in the military. Canada’s military justice system has always been separate from the civilian justice system, and is designed to meet the unique needs of the military. It has evolved from a command-centric disciplinary model that provided weak procedural safeguards, to a parallel system of justice that largely mirrors the civilian justice system. The foundation of Canada’s military justice system is the Code of Service Discipline (“CSD”), which is contained in

Part III of the NDA , and includes s. 130(1) (a). It defines the standard of conduct to which military personnel are subject and provides for a set of military tribunals to discipline breaches of that standard. Section 130(1) (

a) of the NDA transforms most ordinary civil offences that take place in Canada into service offences, thereby giving service tribunals concurrent jurisdiction over such offences when committed by a person who is subject to the CSD. This provision has appeared in the NDA since its enactment, and similar provisions have long existed in the United Kingdom. While Canada’s military justice system has never provided for a trial by jury, it has long provided for a trial before a General Court Martial, which consists of a judge and a military panel.

The role of a military panel is unique; panel members bring military experience and integrity to the military judicial process, and provide the input of the military community responsible for discipline and efficiency. In some respects, a military panel is analogous to a jury, and over the years this has become increasingly so. Like a jury, the panel is the trier of fact, while the judge makes rulings on legal questions. Furthermore, panels are required to reach their verdicts unanimously, and it is the judge who is tasked with imposing a sentence in the event of a guilty verdict.

However, a military panel is not a jury, and important differences distinguish one from the other. There are sound reasons why the military justice system has opted for a unique military panel model, rather than a jury model. For example, the concept of “members tried by members” fosters morale within the military. Further, Canada’s military justice system operates extraterritorially, and service tribunals may have to be convened on short notice in a different part of the world.

Where a trial is to be held outside Canada, it would be highly impractical, if not impossible, to convene a jury of Canadian civilians and transport them to the place of trial. The purpose of the military exception in s. 11(

f) of the Charter is to recognize and affirm the existence of a separate military justice system tailored to the unique needs of the military, and to preserve the historical reality that jury trials in cases governed by military law have never existed in Canada. In the specific instance of s. 11( f ), the military exception restricts the right to a trial by jury by referring, at least implicitly, to a particular head of power under the Constitution Act, 1867 , namely, Parliament’s power over the “Militia, Military and Naval Service, and Defence” under s. 91(7) of the Constitution Act, 1867 . The text “an offence under military law” in s. 11(

f) of the Charter refers to an offence that is validly enacted pursuant to this head of power. Therefore, there must be coherence among the division of powers analysis, the overbreadth analysis, and the meaning of “an offence under military law” in s. 11( f ). The Court’s jurisprudence establishes that Parliament has validly enacted s. 130(1) (

a) of the NDA under the authority granted to it by s. 91(7) of the Constitution Act, 1867 . It also establishes that s. 130(1) (

a) is not overbroad under s. 7 of the Charter . It follows, therefore, that a serious civil offence tried as a service offence under s. 130(1) (

a) qualifies as “an offence under military law” for the purposes of s. 11(

f) of the Charter . Accordingly, it is not inconsistent with s. 11(

f) of the Charter , as it does not deprive a person who is lawfully entitled to a jury of that right. A serious civil offence tried as a service offence under s. 130(1)(

a) qualifies as “an offence under military law” for the purposes of s. 11(

f) of the Charter whether or not there is a heightened “military nexus” going beyond the accused’s military status. There are compelling reasons why the “military nexus” doctrine should not be resurrected. Firstly, the Court in R. v. Moriarity , 2015 SCC 55 , [2015] 3 S.C.R. 485, identified the “military nexus” required to ground a rational connection to discipline, efficiency, and morale in the military — the accused’s military status.

Secondly, a number of the offences listed in ss. 73 to 129 of the NDA , which the parties do not contest are “offence[s] under military law”, can be committed in the absence of a heightened “military nexus” (e.g., “stealing” under s. 114 ). If no heightened “military nexus” is required to preserve the status of these offences as “offence[s] under military law”, then it would be inconsistent to impose such a requirement in relation to offences under s. 130(1) (a).

Thirdly, t he imposition of a heightened “military nexus” requirement would risk causing military courts to engage in an unwieldy and unhelpful threshold inquiry that distracts from the merits. Fourthly, the fundamental purposes of sentencing in the military justice system differ from those in the civilian criminal justice system. Were serious civil offences committed by persons subject to the CSD to be streamed into the civilian justice system, sentencing decisions in those cases might not truly account for the seriousness of such offences, seen in light of the purposes of discipline, efficiency, and morale.

Fifthly, while military prosecutors may engage in an inquiry that resembles a “military nexus” test when assessing whether to exercise jurisdiction in a particular case, the existence of jurisdiction must be separated from the exercise of jurisdiction. Finally, these concerns are reinforced by practical considerations. Imposing a heightened “military nexus” requirement would go against the objective of responding swiftly to misconduct within the military and thereby enhancing discipline, efficiency, and morale in the military.

Per Karakatsanis and Rowe JJ. (dissenting): Based on the nature and purpose, language, and history of the jury trial right and its exception, s. 130(1) (

a) of the NDA does not comply with s. 11(

f) of the Charter to the extent that it denies service members the right to a jury trial for serious offences that do not have a military connection. Thus, s. 130(1)(

a) falls within the scope of the military exception to the Charter right to a jury trial only to the extent that there is a direct connection between the circumstances of the offence and the military.

Because striking down the legislative provision would go further than the Charter breach requires and prevent the trial of all offences bymilitary courts designated in s. 130(1)(a), a military connection requirement should be read into s. 130(1)(

a) to respect s. 11(

f) of the Charter. The meaning of a Charter right is to be understood by analyzing the purpose of the guarantee and the interests it is meant toprotect. The purpose of the right is ascertained by reference to the character and larger objectives of the Charter, the language of the right,the historical origins of the concepts enshrined, and where applicable, the meaning and purpose of the other specific rights with which it isassociated within the text of the Charter. The

interpretation should be generous and aimed at fulfilling the guarantee and securing forindividuals the full benefit of the Charter protection without overshooting the purpose of the right. Exceptions should not be construed morewidely than is necessary to fulfil the values which support them. In order to determine whether an exception is undermining the broadpurpose of the right beyond the intended scope of the exception, it is essential to consider the rationales underlying the right and theexception together.

Section 11(

f) is an illustration of a fundamental right to life, liberty and security of the person guaranteed in s. 7. Buts. 11(

f) also offers a specific protection that s. 7 does not. Legislation found constitutional with respect to s. 7 is not necessarily constitutionalunder s. 11, or vice versa. Thus, the finding in Moriarity that s. 130(1)(

a) of the NDA did not violate s. 7 for overbreadth does not answer thequestion of whether the provision violates s. 11(f). The purpose of s. 11(

f) is to guarantee the right to a jury trial, which protects both anindividual and societal interest in trials by jury. Effect must be given to both aspects of the right. A trial before a military panel does notmirror the civilian justice system when the broader society cannot participate. Over the past four decades, the development of a military connection test in Canada has limited military court jurisdiction tooffences that are military in nature or take place in military circumstances. Military court jurisdiction has historically been subject toimportant limits.

Initially, the types of offences that could be tried by military courts were limited to offences that were specific to themilitary, such as desertion, mutiny and sedition. It was generally appropriate for offences to be heard by military courts rather than civiliancourts where quick and efficient justice was necessary to uphold discipline, such as when offences were committed during wartime or abroad.As the jurisdiction of military courts expanded to include civilian offences, civilian courts maintained primary jurisdiction where offenceswere triable in either court.

Courts developed the military connection test to determine when it was appropriate to depart from the primacy ofcivilian court jurisdiction. That test asked whether a service member committed an offence connected to the military, having regard to thenature of the offence, the circumstances of its commission and whether the offence would tend to affect military discipline and efficiency. The Court in Moriarity did not foreclose the possibility of the military connection test, and it continues to be applied in practiceby military prosecutors.

Determining whether there is a military connection may involve careful consideration and difficult judgment calls,but it is a necessary exercise in light of the constitutional rights at stake. Courts are better placed to make such determinations rather thanleaving them to the discretion of the prosecutor. The constitutionality of a legislative provision cannot depend on the assumption thatdiscretion will be properly exercised. Requiring a military connection test is unlikely to result in further backlogs in civilian courts.

Even ifthere was evidence to suggest that the military justice system suffers from fewer delays than the civilian system, the possibility of delay isnot a proper basis to deny an accused their right to a jury trial. It is the role of the courts to interpret the words expressing the military exception in s. 11(

f) of the Charter to define the range ofoffences that Parliament can exclude from the right to a trial by jury. Legislative competence and overbreadth are not the only limits onParliament’s power. It is not up to Parliament to be the arbiter of constitutional rights by defining what the scope of the military exceptionmeans. Based on a purposive

interpretation, the term “offence under military law” refers to an offence that is connected to the military in itsnature or committed in circumstances sufficiently connected to the military that would directly affect discipline, efficiency and morale. Where an accused is charged with an offence that falls under s. 130(1)(

a) of the NDA and the accused challenges the militarycourt’s jurisdiction on the basis that it would deny their right to a jury trial guaranteed in s. 11(f), the court should ask whether there is amilitary connection. Has a service member committed an offence in circumstances that are so connected to the military that it would have adirect effect on military discipline, efficiency and morale? To determine whether there is a sufficiently direct connection, a court shouldconsider whether the offence was committed while the accused was on duty, on military property or using military property.

If so, a courtmay infer that the circumstances of the offence have a direct impact on military efficiency, discipline and morale. The prosecution may pointto other circumstances of the offence to show such an impact. Section 130(1)(

a) of the NDA cannot be saved by s. 1 of the Charter. The provision is not carefully tailored to its objectives, as itimpairs the right to a jury trial more than is reasonably necessary. The objective of maintaining discipline, efficiency and morale in theArmed Forces is sufficiently pressing and substantial, but it is not obvious that it requires trying ordinary offences in military courts. Aminimally impairing alternative would have been to try penal offences by military panel only where the circumstances in which it wascommitted are directly connected to the military.

The appropriate remedy is to read a military connection requirement into s. 130(1)(a), as itimmediately reconciles the legislation in question with the requirements of the Charter. Cases Cited By Moldaver and Brown JJ. Referred to: R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; MacKay v. The Queen, (SCC), [1980] 2S.C.R. 370; R. v. Généreux, (SCC), [1992] 1 S.C.R. 259; R. v. Royes, 2016 CMAC 1, 338 C.C.C. (3d) 183; R. v. Big MDrug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; R. v.Bryant (1984), (ON CA), 48 O.R. (2d) 732; R. v.

Lee, (SCC), [1989] 2 S.C.R. 1384; R. v. Trépanier, 2008CMAC 3, 232 C.C.C. (3d) 498; R. v. Turpin, (SCC), [1989] 1 S.C.R. 1296; R. v. Sherratt, (SCC), [1991] 1S.C.R. 509; R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398; R. v. Mac, 2002 SCC 24, [2002] 1 S.C.R. 856; R. v. Lunn (1993), (CMAC), 5 C.M.A.R. 157; R. v. Brown (1995), (CMAC), 5 C.M.A.R. 280; R. v. Nystrom, 2005 CMAC 7;O’Callahan v. Parker (1969), 395 U.S. 258; Solorio v. United States (1987), 483 U.S. 435; R. v. MacDonald (1983), (CMAC), 4 C.M.A.R. 277; Ionson v. The Queen (1987), (CMAC), 4 C.M.A.R. 433; Ryan v.

The Queen (1987), (CMAC), 4 C.M.A.R. 563; R. v. Moriarity, 2014 CMAC 1, 455 N.R. 59; R. v. Larouche, 2014 CMAC 6, 460 N.R. 248; Canada(Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; R. v. CIP Inc., (SCC), [1992] 1S.C.R. 843; MacKay v. Rippon, (FC), [1978] 1 F.C. 233; R. v. Ryan, 2018 CM 2033; R. v. Reddick (1996), (CMAC), 112 C.C.C. (3d) 491. By Karakatsanis and Rowe JJ. (dissenting)

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Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2017, release 1). Hollies, J. H. “Canadian Military Law” (1961), 13 Mil. L. Rev. 69. Létourneau, Gilles. Introduction to Military Justice: An Overview of the Military Penal Justice System and Its Evolution in Canada . Montréal: Wilson Lafleur, 2012. Létourneau, Gilles, and Michel W. Drapeau. Military Justice in Action: Annotated National Defence Legislation , 2nd ed. Toronto: Carswell, 2015. Macdonald, Ronald Arthur. Canada’s Military Lawyers . Ottawa: Office of the Judge Advocate General, 2002. Madsen, Chris.

Another Kind of Justice: Canadian Military Law from Confederation to Somalia . Vancouver: UBC Press, 1999. Morel, André. “Certain Guarantees of Criminal Procedure”, in Walter S. Tarnopolsky and Gérald-A. Beaudoin, eds . , The Canadian Charter of Rights and Freedoms : Commentary . Toronto: Carswell, 1982, 367. Pitzul, Jerry S.T., and John C. Maguire. “A Perspective on Canada’s Code of Service Discipline” (2002), 52 A.F.L. Rev. 1. Sullivan, Ruth. Sullivan on the Construction of Statutes , 6th ed. Markham, Ont.: Lexis Nexis, 2014.

Walker, Janet. “A Farewell Salute to the Military Nexus Doctrine” (1993), 2 N.J.C.L. 366. Walker, Janet. “Military Justice: From Oxymoron to Aspiration” (1994), 32:1 Osgoode Hall L.J. 1. APPEALS from a judgment of the Court Martial Appeal Court of Canada (Bell C.J. and Cournoyer and Gleason JJ.A.), 2017 CMAC 2 , 391 C.R.R. (2d) 156, [2017] C.M.A.J. No. 2 (QL), 2017 CarswellNat 2522 (WL Can.), affirming a decision of Perron M.J., 2013

CM 4028, 2013 CarswellNat 11404 (WL Can.), decisions of D’Auteuil M.J., 2013 CM 3032, 2013 CarswellNat 6527 (WL Can.); 2014 CM3024, 2014 CarswellNat 8526 (WL Can.); 2015 CM 3007, 2015 CarswellNat 5821 (WL Can.); and 2015 CM 3009, 2015 CarswellNat 4878(WL Can.), and a decision of Dutil M.J., rendered on August 22, 2014, and setting aside a decision of Dutil M.J., 2015 CM 1001, 2015CarswellNat 146 (WL Can.). Appeals dismissed, Karakatsanis and Rowe JJ. dissenting.

APPEAL from a judgment of the Court Martial Appeal Court of Canada (Bell C.J. and Gagné and Ouellette JJ.A.), 2018 CMAC4, 430 D.L.R. (4th) 557, [2018] C.M.A.J. No. 4 (QL), 2018 CarswellNat 5345 (WL Can.), setting aside a decision of Pelletier M.J., 2016 CM4010, 2016 CarswellNat 3501 (WL Can.). Appeal allowed, Karakatsanis and Rowe JJ. dissenting in part. Jean-Bruno Cloutier and Mark Létourneau, for the appellants (37701) and the respondent (38308). Bruce W. MacGregor, Q.C., Dylan Kerr and Anthony M. Tamburro, for the respondents (37701) and the appellant (38308).

Adam Goldenberg, Peter Grbac and Asher Honickman, for the intervener Advocates for the Rule of Law (37701 and 38308). The judgment of Wagner C.J. and Abella, Moldaver, Côté and Brown JJ. was delivered by Moldaver and Brown JJ. — I. Overview [1]

Section 11(

f) of the Canadian Charter of Rights and Freedoms guarantees every person charged with an offencecarrying a punishment of at least five years’ imprisonment the right to the benefit of a jury trial, “except in the case of an offence undermilitary law tried before a military tribunal” (in French, “sauf s’il s’agit d’une infraction relevant de la justice militaire”). In these appeals,we must determine the scope of this “military exception”. More particularly, we must decide whether an offence under s. 130(1)(

a) of theNational Defence Act, R.S.C. 1985, c. N-5 (“NDA”) falls within its scope. [2] Since the earliest days of organized military forces in post-Confederation Canada, a separate system of military justicehas operated parallel to the civilian justice system. Tailored to the unique needs of the Armed Forces, this system’s processes “assure themaintenance of discipline, efficiency and morale of the military” (R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 46). Itsfoundation is the Code of Service Discipline (“CSD”), contained in

Part III of the NDA. The CSD, which is “an essential ingredient ofservice life” (MacKay v. The Queen, (SCC), [1980] 2 S.C.R. 370, at p. 400), establishes the core features of the militaryjustice system, including the categories of persons subject to the CSD, the “service offences” (as defined in s. 2 NDA) which contravene theCSD, the jurisdiction of military courts (or “service tribunals”, as defined in s. 2 NDA) to try these offences, and the processes forchallenging their decisions. [3] Section 130(1)(

a) creates, by way of incorporation, service offences that add to those already contained in the CSD. Itestablishes, as a service offence, any “act or omission that takes place in Canada and is punishable under . . . the Criminal Code or any otherAct of Parliament”. This transforms criminal and other federal offences (i.e., ordinary civil offences) that take place in Canada into service offences, thereby giving service tribunals jurisdiction (concurrent with civilian courts)[1] over such offences when committed by a personwho is subject to the CSD. [4] This Court has considered s. 130(1)(

a) on several prior occasions. Nearly four decades ago in MacKay, the Courtconfirmed that the enactment of a provision transforming ordinary civil offences into service offences is a valid exercise of Parliament’spower over “Militia, Military and Naval Service, and Defence” under s. 91(7) of the Constitution Act, 1867 (see p. 397). That conclusion isnot challenged here. Twelve years later in R. v. Généreux, (SCC), [1992] 1 S.C.R. 259, the Court affirmed “[t]he existenceof a parallel system of military law and tribunals, for the purpose of enforcing discipline in the military” (p. 295). This observation was madein the context of a challenge to the court martial system under s. 11(

d) of the Charter — which guarantees the right to be tried by anindependent and impartial tribunal — brought by a member of the Armed Forces charged under what is now s. 130(1)(a), among others.Most recently in Moriarity, this Court held that s. 130(1)(

a) is not overbroad under s. 7 of the Charter (para. 56), even absent a “direct link”between the circumstances of the alleged offence and military duties (see paras. 35-36).

This conclusion stemmed from the recognition that“[c]riminal or fraudulent conduct, even when committed in circumstances that are not directly related to military duties, may have an impacton the standard of discipline, efficiency, and morale” in the military (para. 52). [5] The accused persons now before this Court, all of whom were members of the Armed Forces at the relevant time, wereeach charged with one or more service offences under s. 130(1)(a). The underlying offences include sexual assault contrary to s. 271 of theCriminal Code, R.S.C. 1985, c.

C-46, forgery contrary to s. 367 of the Criminal Code, and other serious civil offences carrying a maximumpunishment of at least five years’ imprisonment. Before various standing courts martial, the accused persons asserted their right to a trial byjury under s. 11(

f) of the Charter; maintained that the military exception was not engaged in their circumstances; and claimed that, since s.130(1)(

a) brought them within the military justice system (which does not provide for a trial by jury), it is inconsistent with their s. 11(f)right. All but one of those challenges failed, and appeals ensued. While the accused persons’ appeals in R. v. Déry, 2017 CMAC 2, 391 C.R.R. (2d) 156 (“Stillman”)[2], were dismissed, the appeal in R. v. Beaudry, 2018 CMAC 4, 430 D.L.R. (4th) 557, was allowed, resulting ina declaration that s. 130(1)(

a) is inconsistent with s. 11(

f) of the Charter and is of no force or effect in its application to any civil offence forwhich the maximum sentence is five years or more (hereinafter, “serious civil offence”). [6] Before this Court, the accused persons submit that the only “offence[s] under military law” captured by the militaryexception in s. 11(

f) are those listed in ss. 73-129 of the NDA, which include spying for the enemy (s. 78), mutiny with violence (s. 79),insubordination (s. 85), and other “purely” military offences. In other words, they say that only “special standards of military discipline”, towhich ordinary citizens are not subject, constitute “military law”. [7] The Crown, in contrast, submits that any service offence that is validly enacted pursuant to Parliament’s authority unders. 91(7) of the Constitution Act, 1867, qualifies as “an offence under military law” for the purposes of s. 11(f). It maintains that a serviceoffence under s. 130(1)(

a) is no less “an offence under military law” than spying for the enemy, mutiny, insubordination, or any other serviceoffence set out in the CSD.

[ 8 ] Finally, and while neither the accused persons nor the Crown urges this Court to impose a “military nexus” requirement, that was the approach endorsed in obiter by the majority in Stillman , and as such it represents a third alternative to be considered. [ 9 ] For reasons that follow, we conclude that s. 130(1) (

a) of the NDA is not inconsistent with s. 11(

f) of the Charter . In our view, the words “an offence under military law” in s. 11 (

f) refer to a service offence that is validly enacted pursuant to Parliament’s power over “Militia, Military and Naval Service, and Defence” under s. 91(7) of the Constitution Act, 1867 . As this Court’s jurisprudence confirms, s. 130(1) (

a) is rooted in this head of power. Where, therefore, a serious civil offence is tried as a service offence under s. 130(1) (a), it qualifies as “an offence under military law”, thereby engaging the military exception in s. 11 ( f ). [ 10 ] Accordingly, we would dismiss the appeals in Stillman and allow the appeal in Beaudry . The declaration in Beaudry that s. 130(1) (

a) is of no force or effect in its application to any civil offence for which the maximum sentence is imprisonment of five years or more is set aside, and the conviction is restored. II. Charter and Statutory Provision [ 11 ] The two provisions at the heart of these appeals are s. 11(

f) of the Charter and s. 130(1) (

a) of the NDA : Canadian Charter of Rights and Freedoms 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; National Defence Act

PART III Code of Service Discipline . . . Offences Punishable by Ordinary Law Service trial of civil offences 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 . . . is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2). III. Decisions Below A. Standing Courts Martial [ 12 ] The decisions of the various standing courts martial have already been recounted above. In brief, all but one of the accused persons’ s. 11 (

f) challenges failed, leading to appeals to the Court Martial Appeal Court (“CMAC”). B. R. v. Déry, 2017 CMAC 2 , 391 C.R.R. (2d) 156 (Bell C.J. Concurring, Cournoyer and Gleason JJ.A.) [ 13 ] In Stillman , the CMAC held that it was bound by horizontal stare decisis to follow its previous decision in R. v. Royes , 2016 CMAC 1 , 338 C.C.C. (3d) 183, where the court concluded that s. 130(1) (

a) is not inconsistent with s. 11(

f) of the Charter . In Royes , the

court reasoned that the acts and omissions referred to in s. 130(1)(

a) are service offences and that service offences are offences under militarylaw such that the military exception in s. 11(

f) is engaged. In reaching this conclusion, the court relied heavily on this Court’s decision inMoriarity, stating that although Moriarity did not expressly consider s. 11(f), it nonetheless “dictates finding that paragraph 130(1)(

a) of theNDA, interpreted without a military nexus requirement, does not violate

section 11(

f) of the Charter” (para. 60). [14] In obiter dicta, however, the majority in Stillman added that, in its view, Royes was wrongly decided. It observed that thescope of the military exception in s. 11(

f) of the Charter was not before the Court in Moriarity, and that ss. 7 and 11(

f) entail mutually distinctanalyses. Further, citing the need to give Charter rights a generous and purposive

interpretation, the majority reasoned that reading in a“military nexus” requirement into s. 130(1)(

a) would provide the fullest measure of protection afforded by s. 11(f). It also cited an “emerginginternational trend [towards] restricting the jurisdiction of military tribunals” (para. 65). Finally, it stressed that the meaning of “an offenceunder military law” should be informed by the Charter and Charter values, rather than by Parliament’s chosen definition of “military law”,which may change from time to time. In sum, the majority took the view that it is only by reading in a “military nexus” requirement that s.130(1)(

a) can pass constitutional muster under s. 11(f). [15] In his concurring reasons, Bell C.J. agreed with the majority that the court was bound by Royes, but disagreed with themajority’s view that Royes was incorrectly decided. C. R. v. Beaudry, 2018 CMAC 4, 430 D.L.R. (4th) 557 (Bell C.J. Dissenting, Gagné and Ouellette JJ.A.) [16] In Beaudry, the majority held that it was not bound by Royes and Stillman, stating that horizontal stare decisis “will notbe applied too strictly” where a citizen’s freedom is concerned (para. 19 ).

The majority was fortified in this view by theirreconcilability of Royes and the obiter discussion in Stillman, the resulting uncertainty in the law, and the fact that this Court had alreadygranted leave in Stillman. [17] Having determined that it was not bound by Royes and Stillman, the majority considered the scope of the militaryexception in s. 11(

f) of the Charter afresh, concluding that the only offences that qualify as “offence[s] under military law” for the purposesof s. 11(

f) are those listed in ss. 73 to 129 of the NDA. Accordingly, the majority held that s. 130(1)(

a) is inconsistent with s. 11(

f) because itdeprives service members of the right to a trial by jury for serious civil offences. It further held that this inconsistency could not be justifiedunder s. 1 of the Charter, and declared s. 130(1)(

a) to be of no force or effect in its application to any serious civil offence. [18] In dissent, Bell C.J. maintained that the court was bound by Royes and Stillman, such that s. 130(1)(

a) is not inconsistentwith s. 11(

f) of the Charter. IV. Issue [19] The issue on appeal is whether s. 130(1)(

a) of the NDA is inconsistent with s. 11(

f) of the Charter. This turns on whethera serious civil offence tried as a service offence under s. 130(1)(

a) qualifies as “an offence under military law”, thereby engaging the militaryexception in s. 11(f). V. Analysis [20] To resolve the issue raised on these appeals, we will first examine the right to a trial by jury under s. 11(

f) of the Charter,then turn to consider the military exception. As we will explain, the inclusion of a military exception shows that s. 11(

f) contemplates aparallel system of military justice designed to foster discipline, efficiency, and morale in the military. To understand this parallel system andwhy it is the subject of a discrete exception in s. 11(f), we trace its evolution over time from a command-centric model of discipline to a fullpartner in administering justice alongside the civilian justice system. This in turn bears on the meaning of the words “an offence undermilitary law” in s. 11(

f) which, as we will also explain, captures any service offence validly enacted pursuant to Parliament’s power under s.91(7) of the Constitution Act, 1867. A.

Section 11(

f) of the Charter

(1) Principles of Constitutional

Interpretation [21] A Charter right must be understood “in the light of the interests it was meant to protect” (R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, at p. 344; see also Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p.157), accounting for “the character and the larger objects of the Charter itself”, “the language chosen to articulate the specific right orfreedom”, “the historical origins of the concepts enshrined” and, where applicable, “the meaning and purpose of the other specific rights andfreedoms with which it is associated within the text of the Charter” (Big M, at p. 344).

It follows that Charter rights are to be interpreted“generous[ly]”, aiming to “fulfi[l] the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection”(ibid.). At the same time, it is important not to overshoot the actual purpose of the right or freedom in question (ibid.). As Professor Hoggobserves: In the case of most rights . . . the widest possible reading of the right, which is the most generous

interpretation, will “overshoot” the purposeof the right, by including behaviour that is outside the purpose and unworthy of constitutional protection. The effect of a purposive approachis normally going to be to narrow the scope of the right. Generosity is a helpful idea as long as it is subordinate to purpose. [Footnoteomitted.] (Constitutional Law of Canada (5th ed. Supp.), at p. 36-30) [22] Generally speaking, the same core interpretive principles that apply to rights stated in the Charter also apply toexceptions stated in the Charter.

They are to be read purposively, rather than in a technical or legalistic fashion. And, just as courts must takecare not to “overshoot” the purpose of a Charter right by giving it an unduly generous

interpretation, so too must they be careful not to“undershoot” the purpose of a Charter exception by giving it an unduly narrow

interpretation. But since a Charter exception can beunderstood only if the right it qualifies is understood, the court should consider the two together.

[23] Bearing these principles in mind, we turn first to consider the right to a trial by jury under s. 11(

f) of the Charter beforemoving to the military exception.

(2) The Right to a Trial by Jury [24] Jury trials in English courts can be traced back more than 900 years to the time of William the Conqueror (see R. v.Bryant (1984), (ON CA), 48 O.R. (2d) 732 (C.A.), at p. 742, citing W. S. Holdsworth, A History of English Law (5th ed.1931), vol. 1, at pp. 312-50). The jury “protected accused persons in times past when the monarch could exert undue influence onproceedings being conducted in his own courts” (R. v. Lee, (SCC), [1989] 2 S.C.R. 1384, at p. 1401) and provided “amean[s] of counterbalancing the broad powers of the King and later the State” (R. v.

Trépanier, 2008 CMAC 3, 232 C.C.C. (3d) 498, at para.75). [25] The modern-day understanding of the nature and importance of the right to a trial by jury was explained in R. v. Turpin, (SCC), [1989] 1 S.C.R. 1296, where Wilson J. wrote: The right of the accused to receive a trial before a judge and jury of his or her peers is an important right which individuals have historicallyenjoyed in the common law world. The jury has often been praised as a bulwark of individual liberty.

Sir William Blackstone, for example,called the jury “the glory of the English law” and “the most transcendent privilege which any subject can enjoy”: Blackstone, Commentarieson the Laws of England (8th ed. 1778), vol. 3, at p. 379. The jury serves collective or social interests in addition to protecting the individual. The jury advances social purposes primarily by actingas a vehicle of public education and lending the weight of community standards to trial verdicts.

Sir James Stephen underlined the collectiveinterests served by trial by jury when he stated: . . . trial by jury interests large numbers of people in the administration of justice and makes them responsible for it. It is difficult to over-estimate the importance of this. It gives a degree of power and of popularity to the administration of justice which could hardly be derivedfrom any other source. (J. Stephen, A History of the Criminal Law of England (1883), vol.

I, at p. 573.) In both its study paper (The Jury in Criminal Trials (1980), at pp. 5-17) and in its report to Parliament (The Jury (1982), at p. 5) the LawReform Commission of Canada recognized that the jury functions both as a protection for the accused and as a public institution whichbenefits society in its educative and legitimizing roles. [pp. 1309-10] [26] Not long after Turpin was decided, L’Heureux-Dubé J. described the role and significance of the jury as an institution inR. v.

Sherratt, (SCC), [1991] 1 S.C.R. 509: The jury, through its collective decision making, is an excellent fact finder; due to its representative character, it acts as the conscience of thecommunity; the jury can act as the final bulwark against oppressive laws or their enforcement; it provides a means whereby the publicincreases its knowledge of the criminal justice system and it increases, through the involvement of the public, societal trust in the system as awhole. [pp. 523-24] [27] More recently, the majority in R. v.

Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, emphasized that “[t]he right to betried by a jury of one’s peers is one of the cornerstones of our criminal justice system” (para. 1). This is illustrated by the fact that under s.471 of the Criminal Code, every person charged with an indictable offence shall be tried by a judge and jury unless otherwise stipulated bylaw. [28] This brief review reveals that the right to a jury serves two main purposes. First, at the individual level, it protects theaccused by giving him or her the benefit of a trial by his or her peers.

Since the right is held by the accused, this individual dimension is ofutmost importance. Secondly, at the societal level, it provides a vehicle for public education about the criminal justice system and lends theweight of community standards to trial verdicts. [29] Notwithstanding the significance of these twin purposes, the right to a trial by jury is not absolute. Rather, s. 11(

f) carvesout an internal exception to this right, which distinguishes it from most other Charter rights.

(3) The Military Exception [30]

Section 11(

f) carves out an exception to the right to a trial by jury that applies to “an offence under military law triedbefore a military tribunal” (in French, “une infraction relevant de la justice militaire”). This exception “contemplate[s] the existence of asystem of military tribunals with jurisdiction over cases governed by military law” (Généreux, at p. 296). (

a) The Shared Meaning of the English and French Text [31] A preliminary interpretive issue arose in Beaudry. The English text in s. 11(

f) appears to differ in substance from theFrench. The English version refers to two separate components: for the exception to apply, the offence must be both (1) “under military law”and (2) “tried before a military tribunal”. For its part, the French version refers to a single component: “une infraction relevant de la justicemilitaire” (an offence under the military justice system). [32] As Bastarache J. stated in R. v. Mac, 2002 SCC 24, [2002] 1 S.C.R. 856, “statutory

interpretation of bilingual enactments

begins with a search for the shared meaning between the two versions” (para. 5, citing P.-A. Côté,

Interpretation of Legislation in Canada (3rd ed. 2000), at p. 327). The question, then, is as follows: What is the shared meaning between the English and French versions of the military exception in s. 11( f )? [ 33 ] In our view, the English and French texts share a single meaning. Whereas the English version refers to substantive law (“military law”) and forum (“military tribunal”) independently, the French version simply uses the more compendious “ relevant de la justice militaire ” (under the military justice system), which encompasses both substantive law and forum.

These two elements should be read together as denoting the military justice system as a whole , as the French text makes clear. [ 34 ] In determining the scope of the military exception, we will first turn to the system of military justice contemplated by this exception. B. Canada’s Military Justice System

(1) The Existence and Purpose of Canada’s Parallel System of Military Justice [ 35 ] Canada’s military justice system has always been separate from the civilian justice system. “[D]eeply entrenched in our history” ( Généreux , at p. 295), its purpose is to provide processes that will “assure the maintenance of discipline, efficiency and morale of the military” ( Moriarity , at para. 46; see also Généreux , at p. 293). [ 36 ] The military justice system is therefore designed to meet the unique needs of the military with respect to discipline, efficiency, and morale.

As Lamer C.J. wrote in Généreux , “[t]o maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct” (p. 293). Further, “[r]ecourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military” ( ibid. ).

And, while these purposes of the military justice system have remained consistent over the years, the complexion of the system itself has changed significantly over time in response to developments in law, military life, and society, more broadly.

(2) Early History [ 37 ] Canadian military law traces its roots to the United Kingdom (see Office of the Judge Advocate General, Draft Internal Report — Court Martial Comprehensive Review , January 17, 2018 (online) (“ CMCR Interim Report ”), at p. 31, citing R. A. Macdonald, “The Trail of Discipline: The Historical Roots of Canadian Military Law” (1985), 1 JAG Journal 1, at pp. 6-7). “Shortly after Confederation, the Canadian Army was first organized under the Militia Act of 1868”, which served to incorporate the existing U.K. Army Act (see CMCR Interim Report , at p. 31, citing J. B.

Fay, “Canadian Military Criminal Law: An Examination of Military Justice” (1975), 23 Chitty’s L.J. 120, at pp. 121-22).

The Royal Canadian Navy and the Royal Canadian Air Force followed suit, drawing upon existing U.K. statutes for their respective disciplinary codes ( ibid. ). [ 38 ] Until the NDA was enacted in 1950, control over military discipline was concentrated in the chain of command, consistent with the prevailing attitudes of the time that military discipline was the prerogative of commanders, and that “the soldier should learn to look to his officer alone for justice” ( CMCR Interim Report , at p. 31, quoting C. Madsen, Another Kind of Justice: Canadian Military Law from Confederation to Somalia (1999), at p. 11).

Charges that led to court martial (i.e., military court) proceedings originated within the forces, and the officers who formed part of the court martial that would try the case would decide the matter without necessarily having the assistance of a trained lawyer or judge (“judge advocate”) instructing them on the law (see CMCR Interim Report , at p. 31, citing R. A. Macdonald, Canada’s Military Lawyers (2002), at pp. 6-9).

Nor could the accused generally appeal the verdict of a court martial. [ 39 ] Hence, at this early stage of the Canadian military justice system’s development, the system was largely a “command- centric disciplinary tool” ( CMCR Interim Report , at p. 51). The need for commanders to have access to “an instrument for dealing with serious misconduct by their personnel that would swiftly and strongly promote discipline” was seen as paramount ( ibid. ), and “the focus of a court martial was placed far more on discipline than on what we would now call justice” ( ibid. , at p. 32).

(3) The National Defence Act of 1950 [ 40 ] After World War II, Canada sought to reform its military law (see CMCR Interim Report , at p. 32).

The centrepiece of this reform effort was the National Defence Act , S.C. 1950, c. 43, which amalgamated several military statutes into a single piece of legislation, created a uniform Code of Service Discipline applicable to all three services (Army, Navy, and Air Force), and modernized many aspects of military justice ( ibid. , at p. 33). [ 41 ] The NDA of 1950, ushered in a new era of military justice — it “represented a major evolution toward standards of justice that applied in civilian criminal courts in a number of ways” ( ibid. ).

For example, it created a statutory right of appeal from findings and sentences of courts martial to the Court Martial Review Board, aligned many punishments and procedures more closely with civilian equivalents, and required a legally trained judge advocate to officiate at every General Court Martial hearing ( ibid. , citing W. J. Lawson, “Canadian Military Law” (1951), 9 Judge Advocate J. 1, at pp. 7-11). At the same time, “many of the more command-centric features of the court martial system remained in place” ( ibid. , at p. 33).

For example, military commanders continued to enjoy the authority to overrule decisions of courts martial, and military prosecutors lacked the broad discretion that is standard for civilian prosecutors ( ibid. , at p. 34).

(4) Charter -Era Reforms to the National Defence Act [ 42 ] For almost half a century, the NDA remained largely unchanged (see CMCR Interim Report , at p. 34).

Beginning in the early 1990s, however, important amendments and associated regulations were implemented in response to changing attitudes regarding due process, legal developments such as the Charter and subsequent decisions of the CMAC and this Court, and several detailed studies examining the military justice system ( ibid. , at pp. 34 and 52). [ 43 ] As to regulatory reform, in 1990 the Governor-in-Council amended the Queen’s Regulations and Orders for the Canadian Forces , which are the main source of regulations governing the military, in an effort to strengthen the military justice system by providing more independence to key actors in that system ( ibid. , at pp. 34-35).

[ 44 ] Jurisprudential developments included the 1992 constitutional challenge in Généreux to parts of the pre-1990 regime. The appellant in that case argued that a General Court Martial under the pre-1990 regime was not “an independent and impartial tribunal” within the meaning of s. 11(

d) of the Charter . Lamer C.J. confirmed that the military justice system, like its civilian counterpart, must comply with the Charter , although this does not require that the two systems be identical in every respect. He further held that the military justice system is not, by its very nature as a parallel system staffed by members of the military who are aware of and sensitive to military concerns, inconsistent with s. 11( d ). [ 45 ] That said, Lamer C.J. found shortcomings in the independence and impartiality of the General Court Martial as it existed under the pre-1990 regime.

For example, there was no formal prohibition against evaluating officers on the basis of their performance at a General Court Martial for the purposes of setting salary. Further, he found it was unconstitutional for the authority that convenes the court martial (i.e., the executive) to be responsible for appointing both the prosecutor and the members of the court martial, who serve as the triers of fact .

While acknowledging that “[t]he idea of a separate system of military tribunals obviously requires substantial relations between the military hierarchy and the military judicial system”, he added that “[i]t is important that military tribunals be as free as possible from the interference of the members of the military hierarchy, that is, the persons who are responsible for maintaining the discipline, efficiency and morale of the Armed Forces” (p. 308).

The 1990 amendments, he made a point of adding, went “a considerable way towards addressing th[ese] concerns” (p. 287). [ 46 ] Two detailed reports on the Canadian military justice system, both published in 1997, also contributed to significant reform. The first was a federal Commission of Inquiry report on serious misconduct by members of the Canadian Forces during a 1993 United Nations peacekeeping mission in Somalia (see Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia , vol. 1, Dishonoured Legacy: The Lessons of the Somalia Affair (1997)).

This report contained 45 recommendations for change within the military justice system. [ 47 ] As the Commission was concluding its work, the Minister of National Defence created a Special Advisory Group on Military Justice and Military Police Investigation Services, chaired by the Right Honourable Brian Dickson. The resulting Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (1997) (“ Dickson Report ”) confirmed the need for “a separate and distinct military justice system” (p. 7) and made 35 recommendations aimed at improving this system.

The recommendations included amending the NDA to enhance the degree of independence in military trials; eliminating certain forms of punishment; changing the composition of court martial panels (which we describe in greater detail below) to include non-commissioned members of a certain rank; and ensuring that the presiding judge, rather than the panel, passes sentence on a person convicted before a court martial. [ 48 ] In response to Généreux and the reports outlined above, Parliament introduced Bill C-25,

An Act to amend the National Defence Act and to make consequential amendments to other Acts , 1st Sess., 36th Parl., 1998 (assented to December 10, 1998). Bill C-25 brought about the “most extensive set of amendments” to the NDA since its inception (see CMCR Interim Report , at p. 37). As summarized in the CMCR Interim Report , the bill instituted the following reforms, at p. 38: • It made numerous changes to the [Minister of National Defence’s] quasi-judicial roles and discretionary oversight powers.

For instance, the power of review of court martial decisions, and the power to appoint military judges, shifted from Minister to the Governor in Council; • It provided a statutory basis for independent military judges, in terms of tenure, remuneration, and removal only through an inquiry committee process; • It shifted prosecution functions to a new independent Director of Military Prosecutions (DMP), away from the supervision of senior military authorities, in a way that is now in direct parallel with the federal civilian model; • It created an independent Director of Defence Counsel Services (DDCS), who is responsible for the provision of legal counsel to those accused persons who face courts martial; • It shifted responsibility for convening courts martial and appointing military panel members to an independent Court Martial Administrator (CMA) (a civilian who works under the supervision of the Chief Military Judge (CMJ)) out of the hands of senior military authorities; • It shifted responsibility for the determination of sentence from the panel of military members to the military judge presiding at a court martial; • It eliminated the death penalty and the hard labour component of the punishment of imprisonment; and, • It eliminated the previous 3-year limitation period for service offences tried by courts martial.

Stated succinctly, “Bill C-25 was important to the evolution of the court martial system because it established institutions and independence mechanisms within the system that substantially aligned it with Canada’s civilian criminal justice system, while preserving many of the historic aspects of a court martial, such as the involvement of a panel of military members as fact-finders” ( ibid. ).

[ 49 ] Bill C-25 also mandated periodic, independent reviews of the implementation of the bill. The first independent review was conducted in 2003 by the Right Honourable Antonio Lamer (see Department of National Defence, The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of the provisions and operation of Bill C-25,

An Act to amend the National Defence Act and to make consequential amendments to other Acts, as required under

section 96 of Statutes of Canada 1998, c. 35 (2003) (“ Lamer Report ”)). In his opening remarks, the former Chief Justice stated: “I am pleased to report that as a result of the changes made by Bill C-25, Canada has developed a very sound and fair military justice framework”, though there remained room for improvement. He issued 88 recommendations for strengthening the military justice system.

Two recommendations in particular are worth highlighting: military panels in a General Court Martial should arrive at their verdicts by unanimous vote (rather than by majority vote, which was the rule at the time); and the accused, rather than the Director of Military Prosecutions, should be given the right, at least in most cases, to elect trial by military judge alone or by military judge and panel. Five years later, in Trépanier , the CMAC found the inability of the accused to select the type of court martial, an issue identified in the Lamer Report , to be unconstitutional under ss. 7 and 11(

d) of the Charter , as it interfered with the accused’s ability to make full answer and defence and to control the conduct of that defence. [ 50 ] Trépanier was significant: as the court martial selection process had been declared unconstitutional, no court martial could be convened. This led Parliament to enact Bill C-60,

An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act , 2nd Sess., 39th Parl., 2008 (assented to June 18, 2008), more closely aligning the manner in which the mode of trial by courts martial is determined with the practice in the civilian criminal justice system (see Department of National Defence and the Canadian Armed Forces, Second Independent Review of the National Defence Act — Backgrounder , June 8, 2012 (online)).

It also implemented recommendations of the Lamer Report , such as requiring court martial panels to make key decisions — verdicts of guilty or not guilty, of fitness to stand trial, and of not responsible on account of mental disorder — by unanimous (rather than majority) vote. [ 51 ] The second independent review of Bill C-25 was submitted in 2011 by the Honourable Patrick J. LeSage (see Department of National Defence, Report of the Second Independent Review Authority to The Honourable Peter G. MacKay, Minister of National Defence, by The Honourable Patrick J. LeSage (2011) (“ LeSage Report ”)).

Like the Lamer Report , the LeSage Report observed that “the military justice system, specifically the

summary trial and court martial processes . . . is generally working well” (p. 13).

Among its 55 recommendations was a call for a comprehensive review of the sentencing provisions of the NDA , with a view to making these provisions more closely mirror the flexible range of punishments in the civilian criminal justice system; that reserve force members be eligible to sit on court martial panels; that a random methodology for panel member selection be implemented; and that the laws of evidence applicable at courts martial be updated to keep pace with the evolution of the law of evidence more generally. [ 52 ] While several independent reports have concluded that Canada’s military justice system is functioning well, that is not to say problems do not exist.

In her 2015 External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces , March 27, 2015 (online), the Hon. Marie Deschamps concluded that “there is an underlying sexualized culture in the [Canadian Armed Forces] that is hostile to women and LGTBQ members, and conducive to more serious incidents of sexual harassment and assault” (p. i). She issued 10 recommendations aimed at responding to the “serious problem that exists in the [Canadian Armed Forces]” in relation to inappropriate sexual conduct (p. ix).

Deep cultural change within the military will be required to respond to these recommendations, and efforts at bringing about that cultural change have begun. [ 53 ] The military justice system has come a long way. It has evolved from a command-centric disciplinary model that provided weak procedural safeguards, to a parallel system of justice that largely mirrors the civilian criminal justice system. Many of the key recommendations contained in the various reports referred to above have been implemented by Parliament through amendments to the NDA and associated regulations over the last 30 years.

The continuing evolution of this system is facilitated by the periodic independent reviews mandated by s. 273.601 of the NDA , ensuring the system is rigorously scrutinized, analyzed, and refined at regular intervals. This speaks to the dynamic nature of the military justice system. Just as the civilian criminal justice system grows and evolves in response to developments in law and society, so too does the military justice system.

We see no reason to believe that this growth and evolution will not continue into the future. [ 54 ] Against this historical backdrop, we turn to the military justice system as it exists today. C. The CSD [ 55 ] The foundation of Canada’s military justice system is the CSD, which is contained in

Part III of the NDA . This detailed code is “an essential ingredient of service life” ( MacKay , at p. 400) that “defines the standard of conduct to which military personnel and certain civilians are subject and provides for a set of military tribunals to discipline breaches of that standard” ( Généreux , at p. 297). While it “is primarily concerned with maintaining discipline and integrity in the Canadian Armed Forces”, it “serves a public function as well by punishing specific conduct which threatens public order and welfare” ( ibid. , at p. 281). Several key aspects are worth noting.

(1) Persons Subject to the CSD [ 56 ]

Section 60 of the NDA lists the categories of persons who are subject to the CSD. The list includes officers and non- commissioned members of the regular or special forces, officers and non-commissioned members of the reserve force when the member is on active service, persons who accompany a unit of the Canadian forces while the unit is on service, and others. [3] While a range of persons are covered, they all share a link to the military.

(2) Service Offences [ 57 ]

Section 2 of the NDA defines a “service offence” as “an offence under this Act, the Criminal Code or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline”. For purposes of these appeals, there are two key categories of offences in the NDA : (a) “uniquely military offences” under ss. 73 - 129 ; and (

b) civil offences committed in Canada that are tried as a service offence under s. 130(1) (a). [4] (a) “Uniquely Military Offences” Under Sections 73-129 [ 58 ] Sections 73 to 129 of the NDA create what may be called “uniquely military offences” ( CMCR Interim Report , at p. 43). The types of conduct prohibited by these sections include spying for the enemy, mutiny, and insubordination. The maximum punishments

for these offences range from dismissal with disgrace to life imprisonment. (

b) Ordinary Civil Offences Tried as Service Offences Under Section 130(1)(a) [59] Section 130(1)(

a) provides that “[a]n act or omission . . . that takes place in Canada and is punishable under

Part VII[“Offences Triable by Civil Courts”], the Criminal Code or any other Act of Parliament . . . is an offence under this Division [“ServiceOffences and Punishments”] and every person convicted thereof is liable to suffer punishment as provided in subsection (2)”. Stated succinctly, s. 130(1)(

a) transforms ordinary civil offences that take place in Canada into service offences,[5] thereby giving service tribunalsconcurrent jurisdiction over such offences when committed by a person who is subject to the CSD. [60] This is hardly novel. This provision has appeared in the NDA since its enactment (see s. 119), and similar provisionstransforming ordinary civil offences into offences under military law had long existed in the United Kingdom. The Army Act, 1881 (U.K.), 44& 45 Vict., c. 58, provided that a “person who, whilst he is subject to military law, shall commit any of the offences in this

section mentioned[“Offences punishable by ordinary Law”] shall be deemed to be guilty of an offence against military law” (s. 41). The Naval Discipline Act,1866 (U.K.), 29 & 30 Vict., c. 109, included a provision to the same effect (s. 45). D. Types of Proceedings in the Military Justice System [61] As described in Department of National Defence, Military Justice at the

Summary Trial Level, January 12, 2011 (online)(“Military Justice”), there are two types of proceedings in the military justice system:

summary trials and court martial proceedings.

(1) Summary Trials [62] A

summary trial, which is the predominant form of proceedings for less serious offences, permits as a general rule aservice offence to be tried at the unit level by a commanding officer, delegate of a commanding officer, or superior commander. There is norequirement that the presiding officer be legally trained. The procedures are straightforward and the powers of punishment limited in scope.

(2) Court Martial Proceedings [63] A court martial is a formal military court presided over by a legally qualified military judge. Accused persons whoappear before a court martial are entitled to a lawyer free of charge, and the procedures followed are similar to those followed by civiliancriminal courts. The available forms of punishment are more severe than those available on a

summary trial. [64] There are two types of courts martial: • Standing Courts Martial “are presided over by a military judge sitting alone” (Military Justice, at. p. 3-3). The judge issues averdict and, if the accused is found guilty, imposes a sentence. • General Courts Martial consist of a military judge and a panel of five members of the military. “The panel is responsible formaking a finding on the charges” and the judge “is responsible for making legal rulings and imposing [a] sentence” (ibid.). A person accusedof an indictable offence under s. 130(1)(

a) has the right to elect a trial before a General Court Martial (see NDA, s. 165.193(1)). [65] The General Courts Martial merit particular attention here, given that while the military justice system has neverprovided for a trial by jury, it has long provided for a trial before a judge and a military panel. Such panels have existed in the UnitedKingdom for well over a century (see Army Act, s. 48(3)).

In Canada, the NDA has provided for military panels since its enactment in 1950(see s. 140(1)), although, as we shall explain, their role and composition have changed over time. [66] The role of a military panel is unique, bringing to bear upon the proceedings the military-specific concerns fordiscipline, efficiency, and morale. As Lamer C.J. observed in Généreux, it “represents to an extent the concerns of those persons who areresponsible for the discipline and morale of the military” (p. 295).

Similarly, as noted in the Dickson Report, panel members “bring militaryexperience and integrity to the military judicial process. They also provide the input of the military community responsible for discipline andmilitary efficiency” (p. 55). [67] In some respects, a military panel is analogous to a jury, and over the years they have become more and more so. Like ajury, the panel is the trier of fact, while the judge makes rulings on legal questions (see NDA, ss. 191 and 192(1)).

Furthermore, as alreadymentioned, while panels used to reach their verdicts based on a majority vote, they are now required to reach their verdicts unanimously.And as in the civilian criminal justice system, it is now the judge who is tasked with imposing a sentence in the event of a guilty verdict, arole which before 2010 was entrusted to the panel. [68] That said, a military panel is not a jury (see Trépanier, at para. 73, citing R. v. Lunn (1993), (CMAC),5 C.M.A.R. 157; R. v. Brown (1995), (CMAC), 5 C.M.A.R. 280; and R. v. Nystrom, 2005 CMAC 7). Importantdifferences distinguish one from the other.

For example, while a jury consists of 12 individuals, a panel consists of only 5, thereby loweringthe threshold for a finding of guilt. And, while jurors are drawn from the community at large, panel members are drawn from the militarycommunity only. Thus, the community embodied by a panel is a particular one. Further, and while juries are not designed to reflect any sortof hierarchy between the accused and the jurors, the composition of panels varies with the rank of the accused, and the system is designed toinclude a certain number of the accused’s superiors (see NDA, ss. 167 and 168).

In this way, panel members are not all “peers” of the accusedin the sense of being of equal rank. Final

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