The present post will address the judgment of R v J.L., 2024 CMAC 10, handed down at the start of this week, and which concerned the prosecution of a "Young Person" under the Code of Service Discipline.
In Canadian criminal law, the term "Young Person" refers to a person charged with a criminal offence or offences and who was at least 12 years of age, but who is under the age of 18, at the time of the alleged offence(s) (see Youth Criminal Justice Act (YCJA), SC 2002, c1, s 2, definition, "young person"). The term replaced the earlier terminology "Young Offender", which was problematic, not least because the term appeared to presume guilt.
At trial, R v J.L., 2021 CM 2004, the Military Judge rejected an application of Plea in Bar of Trial that argued that the court martial lacked jurisdiction over a young person pursuant to the YCJA and the National Defence Act (NDA), and sought a termination of proceedings. In the alternative, the accused sought, pursuant to section 52(1) of the Constitution Act, 1982, a declaration that Part III of the NDA (Code of Service Discipline) is of no force or effect with regards to young persons charged with Criminal Code offences as it infringes their right to life, liberty and security of the person protected by section 7 of the Canadian Charter of Rights and Freedoms (Charter). As a result of that declaration, the applicant sought an order staying the proceedings.
J.L. did not challenge the so-called "Military Justice at the Unit Level" (MJUL) regarding the prosecution of "service infractions" before "summary hearings".
The Military Judge proceeded to trial, and found the accused guilty of sexual assault. The central facts alleged, and accepted as proven by the Military Judge, lay at the lower end of the spectrum of this offence. The young person aggressively attempted to kiss the victim, eventually succeeding. There was a significant size and weight difference between J.L. and the victim, and, despite the victim repeatedly telling the young person to stop, J.L. approached her from behind and wrapped his arms around her body and then kissed her neck, leaving a mark.
After the finding of guilt, but prior to sentencing, J.L. filed an application challenging the constitutionality of the sentencing provisions in the NDA as they apply to young persons. The Military Judge concluded that the presumption of diminished moral responsibility applied: R v J.L., 2023 CM 2010. She read down section 60 and other provisions of the NDA, to exclude jurisdiction over a young military person where the military judge lacked the discretion to avoid the imposition of a Criminal Records Act, R.S.C. 1985, c C-47 consequence if the young military member were convicted. The remedy she granted to J.L. was an absolute discharge.
J.L. appealed that decision and the prosecution cross-appealed.
[As an aside, when describing the history of the matter, the English-language version of the CMAC judgement states repeatedly that the Military Judge "convicted" the young person. That is not, strictly speaking, correct. A conviction - whether before a civil court of criminal jurisdiction or a court martial - requires a finding of guilt plus a sentence. J.L. was found guilty and was then subject to an absolute discharge, which is not a sentence. There was no conviction. The French-language version of the judgment uses variations on the expression "déclaration de culpabilité" - which translates to "finding of guilt" - which is appropriate. This was likely a consequence of imprecise translation, which was inconsistent with s 82 of the YCJA.]
On appeal, the CMAC held that although the Code of Service Discipline represents a derogation from the general civilian criminal justice system that is consistent with principles of fundamental justice under s 7 of the Charter and does not contravene the right to a fair trial before an independent and impartial tribunal (s 11(d) of the Charter), it is not a justifiable derogation from the YCJA. The YCJA carves out an exception from the civilian criminal justice system for young persons, who are entitled to a presumption of diminished moral blameworthiness or culpability due to their heightened vulnerability, limited maturity, and a reduced capacity for moral judgment. Similar to its civilian counterpart, the Code of Service Discipline was not designed to accommodate the unique needs of youth criminal justice into account. Just as the civilian criminal justice system is inadequate to meet the unique needs of youth criminal justice, the Code of Service Discipline is also inadequate to meet those needs. This takes precedent over the broader objectives of military justice. The Code of Service Discipline, in terms of service offences prosecuted before courts martial, lack several obligatory protections for young persons that are present under the YCJA.
Director Military Prosecutions (DMP) argued that young persons who are military members do not exhibit the same heightened vulnerability as other youths (para 74) and that they deliberately choose to join the armed forces and are specifically informed on enrollment that they may be liable for prosecution under the CSD. DMP also argued that, in order to enroll, young persons must obtain the consent of a parent or guardian. Consequently, DMP argued that this amounts to an express and informed waiver by young persons to the protections that are available to their civilian counterparts under the YCJA (para 68).
Just as young persons cannot deploy outside Canada's borders on military operations, they cannot be subject to the Code of Service Discipline for prosecution for service offences, other than those identified in s 249.27 of the NDA, that will not result in a criminal record. This judgment is not determinative of the application of minor service offences that do not give rise to criminal records under s 249.27 of the NDA or service infractions that are prosecuted before summary hearings under the MJUL.
After the finding of guilt, but prior to sentencing, J.L. filed an application challenging the constitutionality of the sentencing provisions in the NDA as they apply to young persons. The Military Judge concluded that the presumption of diminished moral responsibility applied: R v J.L., 2023 CM 2010. She read down section 60 and other provisions of the NDA, to exclude jurisdiction over a young military person where the military judge lacked the discretion to avoid the imposition of a Criminal Records Act, R.S.C. 1985, c C-47 consequence if the young military member were convicted. The remedy she granted to J.L. was an absolute discharge.
J.L. appealed that decision and the prosecution cross-appealed.
[As an aside, when describing the history of the matter, the English-language version of the CMAC judgement states repeatedly that the Military Judge "convicted" the young person. That is not, strictly speaking, correct. A conviction - whether before a civil court of criminal jurisdiction or a court martial - requires a finding of guilt plus a sentence. J.L. was found guilty and was then subject to an absolute discharge, which is not a sentence. There was no conviction. The French-language version of the judgment uses variations on the expression "déclaration de culpabilité" - which translates to "finding of guilt" - which is appropriate. This was likely a consequence of imprecise translation, which was inconsistent with s 82 of the YCJA.]
On appeal, the CMAC held that although the Code of Service Discipline represents a derogation from the general civilian criminal justice system that is consistent with principles of fundamental justice under s 7 of the Charter and does not contravene the right to a fair trial before an independent and impartial tribunal (s 11(d) of the Charter), it is not a justifiable derogation from the YCJA. The YCJA carves out an exception from the civilian criminal justice system for young persons, who are entitled to a presumption of diminished moral blameworthiness or culpability due to their heightened vulnerability, limited maturity, and a reduced capacity for moral judgment. Similar to its civilian counterpart, the Code of Service Discipline was not designed to accommodate the unique needs of youth criminal justice into account. Just as the civilian criminal justice system is inadequate to meet the unique needs of youth criminal justice, the Code of Service Discipline is also inadequate to meet those needs. This takes precedent over the broader objectives of military justice. The Code of Service Discipline, in terms of service offences prosecuted before courts martial, lack several obligatory protections for young persons that are present under the YCJA.
Director Military Prosecutions (DMP) argued that young persons who are military members do not exhibit the same heightened vulnerability as other youths (para 74) and that they deliberately choose to join the armed forces and are specifically informed on enrollment that they may be liable for prosecution under the CSD. DMP also argued that, in order to enroll, young persons must obtain the consent of a parent or guardian. Consequently, DMP argued that this amounts to an express and informed waiver by young persons to the protections that are available to their civilian counterparts under the YCJA (para 68).
The CMAC rejected both arguments. Using comparisons with other military justice systems, the Court reasoned that “... International practice suggests the principle of diminished moral culpability is recognized and implemented in like military justice systems.” (para 90, in fine). There was no evidence before the Court that suggests young persons joining the Canadian Forces “... benefit from a degree of advanced maturity that would justify depriving them of a fundamental right applicable to all other young persons in Canada.” On the contrary, the Court found that the evidence suggested otherwise (para 91). The Court held that the presumption of diminished moral culpability cannot be removed by enrolment, even with parental consent, and that such consent and warning upon enrolment does not constitute a “clear, unequivocal and informed” waiver of Charter guaranteed rights. The high bar for such waiver, established in precedent 30 years ago, has not been met here. (paras 94-96).
Just as young persons cannot deploy outside Canada's borders on military operations, they cannot be subject to the Code of Service Discipline for prosecution for service offences, other than those identified in s 249.27 of the NDA, that will not result in a criminal record. This judgment is not determinative of the application of minor service offences that do not give rise to criminal records under s 249.27 of the NDA or service infractions that are prosecuted before summary hearings under the MJUL.
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