R v MacPherson, 2021 CM 2014 was published. This judgment offered reasons for the earlier decision of the presiding Military Judge, Commander S. Sukstorf, on or about 21 July 2021, terminating a prosecution on the court's own motion. Earlier, Commander Sukstorf questioned whether the court martial had jurisdiction over the allegation.
The central issue in this judgment concerns the retrospective application of jurisdiction of the Code of Service Discipline over the offence of sexual assault (and, by extension, other variations of this offence) under the Criminal Code, where the alleged offence pre-dates 1 September 1999, but where it is prosecuted presently.
On 1 September 1999, amendments to section 70 of the National Defence Act (NDA) came into force, following the enactment of Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, SC 1998, C 35. Bill C-25 received Royal Assent on 10 December 1998, but the amendments to section 70 did not come into force until 1 September 1999.
Prior to 1 September 1999, section 70 barred the jurisdiction of the Code of Service Discipline over the offence of sexual assault (and other variations of this offence) under the Criminal Code, where the alleged offence occurred within Canada. This prohibition was removed on 1 September 1999 (although prohibitions remained for the offences of murder, manslaughter, and specific offences relating to the abduction of children, when they occur within Canada).
The issue in MacPherson was whether jurisdiction could be exercised under the Code of Service Discipline for what is often referred to as an 'historical sexual assault' - i.e. when the allegations are raised several years after the alleged offence purportedly occurred. Specifically, the issue before the court martial was whether jurisdiction could be exercised when the offence is alleged to have occurred prior to the date that the amendment to section 70 of the NDA came into force, but is investigated and prosecuted after that date.
That alone would make the judgement worth reading. However, there are also other implications arising from this matter, which make the context of the judgment that much more interesting. These implications are not expressly discussed in the judgment, and some of the relevant factors are discernible principally as inferences. And, admittedly, some of these inferences are the result of inductive reasoning. However, the judgment not only provides an initial response to the question - Can the amended jurisdiction at section 70 of the NDA be applied retrospectively? - it also hints at other issues that those with an interest in military justice might find of interest.
Commander Sukstorf answered the central question in the negative. However, the Director of Military Prosecutions has filed a Notice of Appeal with the Court Martial Appeal Court of Canada. It appears that this matter is not yet concluded.
Global Military Justice Reform contributor, Rory Fowler, expands upon the judgment, and further implications and potential questions, here: R v MacPherson, 2021 CM 2014 – What were they thinking?