Tuesday, September 25, 2018

Canadian Armed Forces seek a stay of CMAC decision in Beaudry

The Supreme Court of Canada has been asked to stay the decision of the Court Martial Appeal Court in the Beaudry case, thereby permitting pending cases to proceed, according to this article by Cristin Schmitz in The Lawyer's Daily. Excerpt:
[Director of Military Prosecutions Col. Bruce] MacGregor warns that, in the absence of a stay, 40 serious prosecutions currently being handled by military prosecutors (i.e. more than half of the CAF’s average annual caseload at courts martial) will have to be redirected to overburdened civilian courts — thus creating “undesirable delays and jeopardizing the ability to try these cases on their merits” — given the consequent risk of not meeting the speedy trial requirements set down by the Supreme Court in R. v. Jordan 2016 SCC 27. 
The Beaudry ruling hit the military justice system hard last week — immediately disrupting three sexual assault trials for which verdicts had yet to be rendered.
The military states in its affidavit in support of the motion to suspend the declaration of invalidity that of 35 cases for which Criminal Code charges have been laid, but for which the trial has yet to start (and over which the military justice system now no longer has jurisdiction), 21 involve sex-related offences, including sexual assault, sexual exploitation (s. 153 of the Criminal Code); and voyeurism (s. 162(1)) of the Criminal Code. 
(Those prosecutions are of particular importance to the CAF because it has been under sustained fire for not doing enough to deal with sexual harassment and sexual assaults that occur within its ranks. After an internal review, the CAF recently reopened 23 cases of alleged sexual assault after re-examining complaints that were dismissed by military police as unfounded.) 
The other prosecutions in potential jeopardy after Beaudry include offences of criminal harassment, fraud, theft, drug trafficking and assault.
One wonders how many of the 40 cases said to be of concern could be transferred to the civilian courts, where the accused's right to a jury trial could be honored. Permitting those cases to proceed in the military courts would mean they would have to be retried in the event the Supreme Court affirms the judgment in Beaudry. If you were on the Supreme Court would you grant the requested stay? What if some of the 40 affected defendants preferred to continue in military proceedings; can't they waive their right to a trial by jury? And finally, how much of a burden on the civilian courts of Canada would it be to add 40 more?

1 comment:

  1. Section 98 of the National Defence Act, S.C. 1998, c.35, s.22 Clause 22 removed "sexual assault" offences from the list of offences which were subject to the exclusive jurisdiction of the civilian criminal justice system. [Section 70 of the NDA refers] A search of the legislative records has not revealed the rationale for giving the military justice system jurisdiction for such civil offences.. Of note, a review of legal literature reveals the commentary made by a former Canada JAG in an article published "A perspective on Canada's Code of Service Discipline”, 52 Air Force Law Review 1, 15 (2002) that the Canadian Armed Forces were granted jurisdiction to tried sexual assault offences for NO OTHER reasons than to "speed up the trial process.” This explains perhaps there is no evidence on the public record that the military judiciary received training and education focused on sexual assault law and sexual assault trials. IT also begs the question as to how and when the military police, the military prosecution gained, almost overnight, the required training, skills and experience required to properly deal with such serious offences. When considering that, at present, victims of crimes prosecuted before military tribunals are expressly excluded from the Canadian Victims' Bill of Rights, S.C. 2015, c-13, section 18(3), it makes abundant sense to repeal the 1998 amendment to section 70 of the NDA. The sooner the better.


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