Three options are now open to the SCC in disposing of the case on its merits. The first is to affirm the decision of the CMAC. The second is to reverse the decision and conclude that the jurisdiction of Canadian military tribunals is not conditional on the existence of a military nexus and, therefore, the importing s. 130 is not constitutionally overbroad. Finally, the third option also implies a reversal of the CMAC decision, but a finding that s. 130, as claimed by the respondent, is constitutionally overbroad. This third option, if accepted, would bring Canadian military criminal justice in line with the military reform movement actually taking place around the world as well as international law and human rights trends. Ordinary criminal law offences would then be tried by civilian courts without prejudice to the military's right to institute real disciplinary proceedings before military tribunals.
As the law stands in Canada, as a result of ss. 2, 60-65 and 130 of the Act, members of the Canadian Forces as well as civilians accompanying the Canadian Forces (children, other family members, workers under contract, dependants and journalists) who commit ordinary criminal law offences fall under the jurisdiction of military courts.
If the SCC were to adopt the second option and rule out the necessity of a military nexus, the above persons will routinely be prosecuted before and tried by military courts for any ordinary criminal law and federal statutory offences even if they have no connection whatsoever with military discipline, efficiency or even morale of the military. Such prosecutions would fail to meet the objectives and the rationale for the existence of a separate military criminal justice system. In R. v. Genereux, (1992) 1 S.C.R. 259, Chief Justice Lamer wrote at p. 293 of his reasons for judgment: "The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military" (emphasis added).
Moreover, the SCC would be reversing its earlier decision in Mackay v. The Queen (1960) 2 S.C.R. 370, at a time when the status test established by the U.S. Supreme Court in Solorio v. United States, 483 US 435 (1987), is under strong criticism and military justice systems around the world are depriving military tribunals of their jurisdiction over ordinary criminal law offences as well as over civilians. It would also be reversing its findings in the Genereux case.
Perhaps more disturbing is the fact that the SCC would be setting aside the only requirement or condition for the application of the exception to the constitutional guarantee of the right to a trial by a jury. In R. v. Brown (1995), 5 C.M.A.C. 281, at paras. 13-14, Justice Hugessen of the CMAC wrote that "it is now well settled that the exception to the guarantee of the right to a jury trial in paragraph 11(f) (of the Canadian Charter of Rights and Freedoms) is triggered by the existence of a military nexus with the crime charged". The only justification I have found for such a far-reaching and detrimental exception to an accused rights is this statement of the then Attorney General of Canada: there never was a trial by jury in the British and Canadian military justice system. I should add that at that very same time there never was an entrenched Charter of Rights for an accused. One would have expected a better justification for such a deprival of this fundamental right as well as others that remained available to accused prosecuted before civilian tribunals.
Abolition of the military nexus requirement would mean that persons tried before military courts would lose the right to a jury trial, the benefit of hybrid offences, the benefit of a preliminary inquiry as well as the panoply of sentences available to civilian tribunals.
The third option offers the SCC the opportunity to revisit the existing scope of the purpose of a separate system of military tribunals in view of the evolving guarantees of the Canadian Charter of Rights and Freedoms, changing circumstances and the development of international human rights.
In the Mackay case, supra, at pp. 380-81, Chief Justice Laskin and Justice Estey, in dissent, were of the view that persons charged with an offence under the ordinary criminal law should be prosecuted before civilian tribunals, "free from any suspicion of influence or dependency on others". They went on to say: "There is nothing in such a case, where the person charged is in the armed forces, that calls for any special knowledge or special skill of a superior officer, as would be the case if a strictly service or discipline offence, relating to military activity, was involved". They finally concluded that they "could not conceive that there can be in this country two such disparate ways of trying offences against ordinary law, depending on whether the accused is a member of the armed forces or not".
The majority decision in Mackay was rendered not long after WWII. The Cold War was on and the spirit of war was still around. In addition accused rights and protection were not constitutionalized in Canada. This is no longer the case. While I agree that discipline and efficiency are two fundamental military values, ordinary criminal law and federal statutory offences are not disciplinary offences. The prosecution of these offences should be left to civilian authorities and, as a general rule, the trial should take place before civilian courts. The military is a profession of arms and, as is the case for any other profession in Canada, whether it be the medical or the legal profession, to cite two examples, offenders can be prosecuted for conduct prejudicial to the profession, good order and discipline before the appropriate disciplinary board or tribunal.