Should Canada's criminal law have two standards?

Recently, the Honorable B. Richard Bell, Chief Justice of the Court Martial Appeal Court of Canada [CMAC] decided on a Motion in Sailor Third Class S.J.M. Champion v. Her Majesty the Queen, CMAC 611, whether a member of the Canadian Armed Forces [CAF] who is attending before a Military Judge at a Custody Review Hearing has a right to be released without conditions at the time of the hearing, when no charges had been laid.  

            For the reasons that follow, Chief Justice (CJ) Bell denied the existence of such a right for a CAF member.

            At the Motion hearing, the Crown argued that the military authorities imposed conditions upon Sailor Champion’s release out of concern for his safety and physical well-being. They also argued that the decision to impose conditions prior to the laying of any charge was necessary to ensure the maintenance of discipline, efficiency and morale as well as in order the chain of command could ensure Sailor Champion’s welfare.

            CJ Bell noted that, contrary to the Criminal Code of Canada, the National Defence Act is totally silent on this particular procedure. 

            CJ Bell also opined that such ‘silence' is 'intentional.' 

           CJ Bell went on to state: “Parliament has chosen not to replicate the provisions and procedures found in the civilian criminal justice system" in recognition and affirmation of a separate military justice system designed to meet the particular needs of the CAF. He added, however, that any such imposition of conditions upon a CAF member is necessarily subject to the principles of fundamental justice where such conditions will restrict the individual’s life, liberty or security of the person. 

           For good measures, CJ Bell added: “It inherently follows that the needs of the military justice differ from those of the civilian justice system.” He also held:  “The military justice system is clothed with purposes unknown to the civilian criminal system.”  

           CJ Bell went on to conclude thusly:

“I am of the view that the Canadian Military Justice System, which permits a member be detained without changes or have conditions imposed upon his or her release, for up to 72 hours , before appearing before a Military Judge constitutes a reasonable limit prescribed by law and demonstrably justified in a free and democratic society.”

            It will be interesting to see if this Motion will be subject of an appeal.

            I sincerely hope so since its very logic or rationale would open the door for the military justice system to justify this and possibly other breaches to Section 6 of the Canadian Charter of Rights of Freedoms [the Charter] which guarantees every Canadian mobility rights, including between provinces and internationally or section 7 of the Charter which guarantees the right to life, liberty and security of the person. In my respectful opinion, constitutionally protected right to liberty, and right to be presumed innocent apply to ‘everyone,’ which necessarily includes every citizen of Canada be they civilians or members of the military.