Monday, January 25, 2016

Right to a jury trial: new appeal launched before Court Martial Appeal Court of Canada

Master Corporal (MCpl) D.D. Royes was charged under section 130 of the National Defence Act for having committed a sexual assault contrary to section 271 of the Criminal Code of Canada.  At trial, see R. v. Royes D.D., 2013 CM 4034, Royes was found guilty and sentenced to imprisonment for a period of 36 months.  A constitutional appeal was made by counsel for defence to the Court Martial Appeal Court [CMAC] seeking an order declaring subsection 130(1) of the National Defence Act to be of “no force and effect”  because it is inconsistent with  subsection 11(f) of the Canadian Charter of Rights and Freedoms and cannot be saved by section 1 of the said Charter. 

Hearings by Court Martial Appeal Court - January 22, 2016 

The appeal was heard on  Friday January 22, 2016 the CMAC (Dawson, Trudel and Rennies J.JA)


Subsection 11(f ) the Charter of Rights and Freedoms reads as follows 
                    Proceedings in criminal and penal matters
             11. Any person charged with an offence has the right
(a) [ . . . ]
(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;
(g) [. . ..]
In Mackay v. The Queen [1980] 2 S.C.R. 370, 380, a pre-Charter case, the Supreme Court of Canada held that the trial of a soldier by a military tribunal did not offend the Canadian Bill of Rights guarantees of equality before the law. However, in R. v. MacDonald (1983) 140 D.L.R. (3d) 620 (Court Martial Appeal Court), it was held that, to come within the phrase 'offence under military law' in subsection 11(f), an offence must be with the definition in the National Defence Act and have a 'military nexus'.

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