R. v. Gobin, 2018 CM 2005

COURT MARTIAL Citation: R. v. Gobin , 2018 CM 2005 Date: 20180201 Docket : 201725 Standing Court Martial Canadian Forces Base Shilo Shilo, Manitoba, Canada Between: Corporal R. J. Gobin, Applicant - and - Her Majesty the Queen, Respondent Before: Commander S.M. Sukstorf, M.J. 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information that could disclose the identity of the person described during these proceedings as the complainant shall not be published in any document or broadcast or transmitted in any way. DECISION RELATING TO A PLEA IN BAR OF TRIAL (Orally) Introduction [ 1 ] On March 14, 2017, the prosecution preferred one charge punishable under

section 130 of the National Defence Act ( NDA ) alleging an offence contrary to

section 271 of the Criminal Code for sexual assault. On November 1st, 2017, the Acting Court Martial Administrator (CMA) issued a convening order for the accused to appear before a Standing Court Martial at Canadian Forces Base Shilo on the 1st day of February 2018.

The Application [ 2 ] On January 26, 2018, counsel for Corporal Gobin provided the CMA with notice, under Queen’s Regulations and Orders for the Canadian Forces (QR&O) 112.04, of his intention to bring an application pursuant to QR&O 112(5)(

e) to challenge the constitutionality of paragraph 130(1)(

a) of the NDA . He alleges that section 130(1)(

a) deprives an accused, facing a court martial, of his or her right to a jury trial, guaranteed under paragraph 11(

f) of the Canadian Charter of Rights and Freedoms , and should therefore be declared of no force or effect under

section 52 of the Constitution Act , 1982 . This morning, 1 February 2018, at the beginning of these court martial proceedings, counsel made oral submissions on the application. Analysis and disposition [ 3 ] In both his notice of application and oral submissions, the applicant admits that the application is made for the purpose of preserving his rights engaged by the ongoing constitutional challenges, on the same grounds, being considered by higher courts. In the case of R . v . Royes , 2016 CMAC 1 (Leave to appeal to the Supreme Court of Canada (SCC) refused, Case Number 37054 (February 2, 2017)), the Court Martial Appeal Court (CMAC) concluded that paragraph 130(1)(

a) does not violate

section 11(

f) of the Charter . However, more recently, in R. v. Stillman , 2017 CMAC 2 , in its reasons, delivered by Cournoyer and Gleason, J.J.A., the CMAC stated that it would not have reached the same conclusion as the CMAC panel did in Royes , but that it felt bound in its finding based on judicial comity. The case of R . v. Stillman et al ., SCC Case Number 37701, is currently the subject of an application for leave to appeal to the SCC. In addition, in another case, R. v. Beaudry , CMAC-588, the CMAC was asked to reconsider its position in Royes . [ 4 ] In R . v. Moriarity , 2015 SCC 55 , 3 S.C.R. 485, the SCC held that section 130(1)(

a) of the NDA does not violate

section 7 of the Charter . In its decision in Royes , the CMAC concluded that the SCC decision in Moriarity , made in the context of

section 7, dictated the finding that paragraph 130(1)(

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

section 11(

f) of the Charter . The SCC subsequently dismissed the application for leave of the Royes CMAC decision. [ 5 ] Subject to a few narrow exceptions, which are not relevant to the case at bar, stare decisis is a legal principle that obligates military judges to follow the precedent established in prior decisions made by the CMAC and the SCC. As such, notwithstanding the ongoing appeals at this time, as of today, Royes reflects the current law on this issue and is binding on this Court. Royes clearly states that paragraph 130(1)(

a) does not violate

section 11(

f) of the Charter . FOR THESE REASONS, THE COURT: [ 6 ] REJECTS the application. Counsel: Lieutenant-Commander B. G. Walden and Major F. Ferguson, Defence Counsel Services, Counsel for the Applicant The Director of Military Prosecutions as represented by Major G. J. Moorehead, Counsel for the Respondent