The Supreme Court of Canada has set the case of
H.M. The Queen v. Cawthorne, No. 36466, for hearing on April 25, 2016. According to the
registrar's summary on the court's website:
The respondent was convicted by a general court martial of possession of child pornography and accessing child pornography. The pornography was discovered on the respondent’s cellular phone by an individual who had found the phone and who had accessed its content in an attempt to find its owner. The respondent admitted to possessing the pornography, but denied that it was child pornography. The main issue at trial was whether the respondent knowingly accessed and possessed child pornography. The respondent appealed his conviction arguing, among other things, that the military judge erred by failing to grant a mistrial after certain inadmissible evidence was given by a Crown witness. A majority of the Court Martial Appeal Court allowed the appeal and ordered a new trial. Veit J.A., dissenting, would have dismissed the appeal.
The decision below can be found
here.
There is a motion to quash based on constitutional matters in this case. It relates to the right to appeal given to the Minister of National Defence (as opposed, for example to the Director of Military Prosecution, the Attorney General of Canada or the Director of Public Prosecutions). Defendant argues that current scheme goes against the independence of prosecutions, a principle of fundamental justice. Court Martial Appeal Court agreed in R. v. Gagnon, 2015 CACM 2 although they suspended the declaration of invalidity for 6 months.
ReplyDeleteAs put by the Supreme Court website, the constitutional questions are stated as follows:
1. Does paragraph 245(2) of the National Defence Act, R.S.C., 1985, c N-5 [which gives the right to appeal to the Minister] violate s. 7 of the Canadian Charter of Rights and Freedoms [which includes the independence of prosecutions as stated by the SCC in Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, 2002 SCC 65]?
2. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms [a.k.a. Oakes Test - R v Oakes [1986] 1 S.C.R. 103]?
3. Does paragraph 245(2) of the National Defence Act, R.S.C., 1985, c N-5 violate s. 11(d) [the right of a fair trial] of the Canadian Charter of Rights and Freedoms?
4. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?