Friday, November 13, 2020

R v Christmas – Beware the Ghosts of Judgments Past

On 10 November 2020, in his decision in R v Christmas, the Deputy Chief Military Judge (DCMJ) of the Canadian Forces (CF), and de jure Acting Chief Military Judge, Lieutenant-Colonel (LCol) L-V d’Auteuil, granted a stay of proceedings in response to the accused’s application pursuant to paragraph 11(d) of the Canadian Charter of Rights and Freedoms (the Charter).  The accused, Corporal Christmas, argued that courts martial were not independent and impartial tribunals so long as military judges were subject to the disciplinary jurisdiction of the chain of command for the CF.

In so doing, the DCMJ drew a conclusion that was markedly contrary to the judgment of his fellow military judge, Commander (Cdr) Sukstorf, in R v MacPherson and Chauhan and J.L., 2020 CM 2012 [MacPherson].  The issue of judicial comity was necessarily raised in this application, and LCol d’Auteuil held that judicial comity required him to follow the line of reasoning begun in R v Pett, 2020 CM 4002 (per Cdr Pelletier) and R v D’Amico, 2020 CM 2002 (per Cdr Sukstorf), and to decline to follow that of Cdr Sukstorf in MacPherson.  In so doing, LCol d’Auteuil concluded that the judgment in MacPherson represented a derogation from the prior series of judgments this year that focused on the independence and impartiality of the military judiciary.  (An examination of the judgment in MacPherson can be found here.)

Further examination of the impact of this decision can be found here.

As  a result of these conflicting judgments, two things are certain: the scope and argument of the appeals in R v Edwards, et. al. (CMAC-606, CMAC-607, CMAC-608, and CMAC-609), which will likely be heard by the Court Martial Appeal Court of Canada in January 2021, will expand, and uncertainty regarding the application of the Code of Service Discipline will continue.

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