Military law decisions by Supreme Court of Canada this coming Friday

The Supreme Court of Canada announced today that judgments in the following appeals will be delivered at 9:45 a.m. EDT on Friday, July 22, 2016. 

• Sa Majesté la Reine c. J.G.A. Gagnon et autre 
• Sa Majesté la Reine c. A.J.R. Thibeault. 
• Her Majesty the Queen v. Cawthorne 

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SUMMARIES

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Her Majesty the Queen v. J.G.A. Gagnon 

Her Majesty the Queen v. A.J.R. Thibault

Fundamental justice - Prosecutorial independence - Appeals - Courts - Jurisdiction - Judgments and orders - Stay of execution - Whether s. 230.1 of National Defence Act, R.S.C. 1985, c. N-5,infringes s. 7 of Canadian Charter of Rights and Freedoms- If so, whether infringement is reasonable limit prescribed by law that can be demonstrably justified in free and democratic society under s.1 of the Charter - Whether s. 230.1 of National Defence Act infringes s. 11(d) of the Charter - If so, whether infringement is reasonable limit prescribed by law that can be demonstrably justified in free and democratic society under s.1 of the Charter - Whether stay of execution of Court of Appeal’s declaration of invalidity should be ordered pending this Court’s decision on constitutional questions raised in this case.

The two respondents, who were members of the Canadian Armed Forces, were charged with sexual assault in two separate cases and were successful at trial. When the appellant appealed the verdicts, the respondents brought motions to quash and dismiss the appeals on the basis that s. 230.1 of the National Defence Act is inconsistent with the constitutional requirement of prosecutorial independence. The Court Martial Appeal Court held that s. 230.1 is invalid. The declaration of invalidity was suspended for a six-month period ending on June 21, 2016. The respondents’ motions to quash and dismiss the appeals were dismissed, however, and the hearing of the appeals on the merits was adjourned to a date to be determined after the expiry of the period during which the effect of the declaration of invalidity was suspended.

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Her Majesty the Queen v. Cawthorne

Criminal law - Accessing child pornography - Possession of child pornography - Mistrials - Whether the military judge erred when he exercised his discretion to dismiss the motion for mistrial.

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.