PRIVATE DÉRY, J.-C. Appellant v. HER MAJESTY THE QUEEN, 2017 CMAC 1

Date: 20170519 Dockets: CMAC-566 CMAC-567 CMAC-577 CMAC-581 Citation: 2017 CMAC 1 CORAM: CHIEF JUSTICE BELL COURNOYER J.A. GLEASON J.A. CMAC-566 BETWEEN: PRIVATE DÉRY, J.-C. Appellant and HER MAJESTY THE QUEEN Respondent CMAC-567 AND BETWEEN: MASTER CORPORAL C.J. STILLMAN Appellant and HER MAJESTY THE QUEEN Respondent CMAC-577 AND BETWEEN: HER MAJESTY THE QUEEN Appellant and WARRANT OFFICER J.G.A. GAGNON Respondent CMAC-581 AND BETWEEN: HER MAJESTY THE QUEEN Appellant and CORPORAL A.J.R. THIBAULT Respondent Heard at Ottawa, Ontario, on April 26, 2016. Judgment delivered at Ottawa, Ontario, on May 19, 2017.

REASONS FOR JUDGMENT BY: CHIEF JUSTICE B. RICHARD BELL CONCURRED IN BY: COURNOYER J.A. GLEASON J.A. Date: 20170519 Dockets: CMAC-566 CMAC-567

CMAC-577 CMAC-581 Citation: 2017 CMAC 1 CORAM: CHIEF JUSTICE BELL GLEASON J.A. COURNOYER J.A. CMAC-566 BETWEEN: PRIVATE DÉRY, J.-C. Appellant and HER MAJESTY THE QUEEN Respondent CMAC-567 AND BETWEEN: MASTER CORPORAL C.J. STILLMAN Appellant and HER MAJESTY THE QUEEN Respondent CMAC-577 AND BETWEEN: HER MAJESTY THE QUEEN Appellant and WARRANT OFFICER J.G.A. GAGNON Respondent CMAC-581 AND BETWEEN: HER MAJESTY THE QUEEN Appellant and CORPORAL A.J.R. THIBAULT Respondent REASONS FOR JUDGMENT CHIEF JUSTICE B. RICHARD BELL I. Background A.

Private Déry [ 1 ] Private Déry was charged with a service offence punishable under s. 130 of the National Defence Act , RSC 1985, c N-5 [ Act ] of having committed a sexual assault contrary to s. 271 of the Criminal Code , RSC 1985, c C-46 [ Criminal Code ]. He was found guilty by a Standing Court Martial. The incident occurred at Canadian Forces Base Wainwright, Alberta, in the tent where the victim was sleeping. Private Déry appeals from the decision on the basis that paragraph 130(1) (

a) of the Act violates the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ] and should be declared invalid pursuant to subsection 52(1) of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Constitution Act, 1982 ]. B. Master Corporal Stillman [ 2 ] Master Corporal Stillman was charged with service offences punishable under s. 130 of the Act and was found guilty by a Standing Court Martial of five charges. Those charges are set out in Annex A attached hereto. Master Corporal Stillman shot the victim in the thigh with a .45-calibre semi-automatic pistol on Canadian Forces Base Shilo. As he walked away from the scene and was being pursued, he turned and fired another shot, which narrowly missed the second victim. Master Corporal Stillman appealed the decision on the basis that paragraph 130(1) (

a) of the Act violates sections 7 and 11 of the Charter and should be declared invalid pursuant to subsection 52(1) of the Constitution Act, 1982 . C. Warrant Officer Gagnon

[3] Warrant Officer Gagnon was charged with a service offence under s. 130 of the Act of having committed sexual assault contrary to s.271 of the Criminal Code. He was acquitted by a Standing Court Martial. The Crown appealed on the basis that the military judge erredin providing instructions on the defence of mistaken belief in consent. D. Corporal Thibault [4] Finally, Corporal Thibault was charged with a service offence under s. 130 of the Act of having committed sexual assault contrary tos. 271 of the Criminal Code.

The military judge terminated the proceedings when he concluded the offence was not sufficientlyconnected in its nature and in the circumstances of the offence, such that the standard of discipline and efficiency of the Canadian Forceswould be affected. The Crown appealed on the basis that the military judge erred in its analysis of the military nexus requirement. II. Nature of the Appeals and Issues [5] On September 30, 2014, Warrant Officer Gagnon filed a Notice of Cross-Appeal. On February 25, 2015, Corporal Thibault did thesame. Both contended that paragraph 130(1)(

a) of the Act is unconstitutional and should be declared invalid pursuant to subsection 52(1)of the Constitution Act, 1982, on the basis that it violates s. 7 of the Charter. [6] On March 11, 2015, Corporal Thibault and Warrant Officer Gagnon filed and served a Notice of Constitutional Question challengingthe constitutional validity of the Minister of National Defence’s [the Minister] right to appeal a criminal matter under s. 230.1 of the Act.This Court in R v Gagnon, 2015 CMAC 2 declared s. 230.1 of the Act unconstitutional. The Minister appealed this Court’s decision tothe Supreme Court of Canada.

Until determination of that appeal, this Court ordered the matter involving Corporal Thibault and WarrantOfficer Gagnon to be adjourned. On July 22, 2016, the Supreme Court delivered its judgment in which it overturned this Court andconcluded s. 230.1 to be constitutionally valid. [7] On November 19, 2015, the Supreme Court issued a decision in R v Moriarity, 2015 SCC 55, R v Moriarity, 2015 SCC 55, [2015] 3SCR 485 [Moriarity] in which it concluded that s. 130(1)(

a) does not violate s. 7 of the Charter. As a result of Moriarity, WarrantOfficer Gagnon and Corporal Thibault, on December 22, 2015, filed amended Notices of Cross-Appeal in which they contend paragraph130(1)(

a) of the Act violates s. 11(

f) of the Charter. [8] On December 4, 2015, the appellants, Private Déry and Master Corporal Stillman, served and filed a Notice of Motion to presentfurther written submissions in light of Moriarity, pursuant to Rules 24 and 28(1)(

f) of the Court Martial Appeal Court Rules, SOR86/-959 [CMAC Rules], on the issue of whether s. 130(1)(

a) violates s. 11(

f) of the Charter. [9] The appellants, Private Déry and Master Corporal Stillman, and the cross-appellants, Warrant Officer Gagnon and Corporal Thibault,contend that s. 130(1)(

a) of the Act violates s. 11(

f) of the Charter, in that the exception to a jury trial is no longer remedied by themilitary nexus requirement. They contend that this Court has consistently viewed this remedy as relating to the nature of the offencerather than the status of the accused, and that this Court has not changed its rulings in R v Larouche, 2014 CMAC 6 and in R v Moriarity,2014 CMAC 1. They raise the s. 11(

f) issue following the Supreme Court’s decision in Moriarity and its refusal to address the scope ofthe exception to the right to a jury trial as guaranteed under s. 11(

f) of the Charter. The Appellants contend that this Court may exerciseits discretion to grant their motions based upon Rule 29 of the CMAC Rules. [10] The Crown opposes the motions to amend the Notices of Cross-Appeal in the matters involving Warrant Officer Gagnon andCorporal Thibault. At the hearing held on April 26, 2016, this Court exercised its discretion and granted, pursuant to subsection 28(1)(f)of the CMAC Rules, the motions to amend the Notices of Cross-Appeal and the motions to permit further written submissions in thematters involving Private Déry and Master Corporal Stillman.

The Court indicated reasons would follow; these are the reasons. III. Analysis [11] First, I would note the constitutional question related to s. 11(

f) of the Charter submitted by Warrant Officer Gagnon and CorporalThibault constitutes a new ground of appeal, as they did not originally plead a violation of that section. These motions to amend aresubsequent to the decision in Moriarity which holds that paragraph 130(1)(

a) of the Act does not violate s. 7 of the Charter. The decisionin Moriarity altered the jurisprudence established by this Court with respect to the application of a so-called ‘military nexus’ test to theapplication of s. 7 of the Charter. In R v Royes, 2016 CMAC 1, this Court found that, as a result of the Supreme Court’s conclusion inMoriarity, interpreting s. 130 of the Act without a military nexus requirement does not violate s. 11(

f) of the Charter. The differentinterpretive approach by the Supreme Court from that previously taken by this Court motivated the appellants Private Déry and MasterCorporal Stillman, and the cross-appellants, Warrant Officer Gagnon and Corporal Thibault, to request the opportunity to make furthersubmissions and amend their Notices of Appeal in the circumstances. [12] Second, on the motion to amend, this Court also considered the fact that the issue of the application of s. 11(

f) of the Charter wasproperly before it in several other appeals. In addition, the parties informed the Court they did not intend to lead evidence on the issue. Inall of the circumstances, we concluded that despite the bifurcation of the appeal and the lack of an evidentiary foundation, we wouldpermit the amendments (see R v Wigman, (SCC), [1987] 1 SCR 246, [1987] SCJ no 13) and the further submissions.Parties to an appeal are entitled to raise new questions of law, subject to the opposing party being given reasonable notice and areasonable opportunity to respond.

This was accomplished in the present case when the parties to the respective moving parties filed andserved their Notices of Motion at least four months prior to [13] the scheduled hearing date. I consider such notice to be adequate in the circumstances.

IV. Conclusion [ 14 ] I would allow the motions to amend the Notices of Cross-Appeal in the appeals involving Warrant Officer Gagnon (CMAC-577) and Corporate Thibault (CMAC-581). I would also grant Private Déry (CMAC-566) and Master Corporal Stillman (CMAC-567) permission to file further submissions. “B. Richard Bell” Chief Justice “I agree. Guy Cournoyer J.A.” “I agree. Mary J.L.

Gleason J.A.” ANNEX A Master Corporal Stillman was charged with service offences punishable under s. 130 of the Act and was found guilty by a Standing Court Martial of the following five charges: Charge 1 (alternate to charge 2): S. 130 NDA, discharging a firearm with intent (s. 244 CCC). Charge 4 (alternate to charge 3): S. 130 NDA, discharging a firearm recklessly (s. 244.2 CCC). Charge 5: S. 130 NDA, aggravated assault (s. 268 CCC). Charge 6: S. 130 NDA, using a firearm in the commission of an offence (s. 85(1) CCC). Charge 9: S. 130 NDA, possession of a loaded restricted firearm (s. 95 CCC).

COURT MARTIAL APPEAL COURT OF CANADA NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: CMAC-566 STYLE OF CAUSE: PRIVATE DÉRY, J.-C. v. HER MAJESTY THE QUEEN AND DOCKET: CMAC-567 STYLE OF CAUSE: MASTER CORPORAL C.J. STILLMAN v. HER MAJESTY THE QUEEN AND DOCKET: CMAC-577 STYLE OF CAUSE: HER MAJESTY THE QUEEN v. WARRANT OFFICER J.G.A. GAGNON AND DOCKET: CMAC-581 STYLE OF CAUSE: HER MAJESTY THE QUEEN v. CORPORAL A.J.R. THIBAULT

PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: April 26, 2016 REASONS FOR JUDGMENT BY: CHIEF JUSTICE BELL CONCURRED IN BY: COURNOYER J.A. GLEASON J.A. DATED: MAY 5, 2017 APPEARANCES : Capitaine de Corvette Mark Létourneau Lieutenant-Colonel Jean-Bruno Cloutier For The Appellants PRIVATE DÉRY, J.-C. WARRANT OFFICER J.G.A. GAGNON CORPORAL A.J.R. THIBAULT Major Dylan Kerr Major Gabriel Roy For The Respondents Capitaine de Corvette Mark Létourneau For The Appellant (MASTER CORPORAL C.J.

STILLMAN) Lieutenant Colonel David Anthonyshyn For The Respondent SOLICITORS OF RECORD : Defence Counsel Services Gatineau, Quebec For The Appellants Canadian Military Prosecution Service Ottawa, Ontario For The Respondents