R v Calderon, 2026 CMAC 2 - A lesson in statutory interpretation (in Canada)

On 15 January 2026, the Court Martial Appeal Court of Canada (CMAC) handed down its first determinative judgment of 2026. [In R v Cadieux, 2026 CMAC 1, Chief Justice Gleason granted a motion permitting the appellant to resurrect a previously abandoned appeal.]

The judgment in R v Calderon, 2026 CMAC 2, written by Chief Justice Gleason, was largely an exercise in statutory interpretation.  The central issue was whether military judges had the discretion to impose a sentence that is not expressly provided for in the National Defence Act (NDA).  Whether that was the case turned principally on the proper interpretation of s 132(2) of the NDA.

 
Corporal Calderon was initially charged with: two counts of "dangerous operation of a motor vehicle causing bodily harm" contrary to s 320.13(2) of the Criminal Code, incorporated as a service offence under s 130 of the NDA; one count of "dangerous operation of a motor vehicle" contrary to s 320.13(1) of the Criminal Code (also incorporated as a service offence under s 130 of the NDA); and, one count of "drove a vehicle of the Canadian Forces in a manner that was dangerous to any person or property having regard to all the circumstances" contrary to para 111(1)(a) of the NDA. 

There were some interesting tangential nuances.  The sentencing followed a guilty plea to the third and fourth charges (the two counts of "dangerous operation of a motor vehicle causing bodily harm" were withdrawn by the military prosecutor).  This guilty plea was followed by (and presumably contingent upon) a joint submission by the military prosecutor and defence counsel.  The joint submission recommended the imposition of a sentence of reduction in rank, a reprimand, and a driving prohibition order for one year pursuant to subsection 320.24(4) of the Criminal Code.

The punishments of "reduction in rank" and "reprimand" are both provided under s 139 of the NDA.  A driving prohibition is not, nor is it provided for elsewhere in the NDA.  Subsection 130(1) of the NDA, incorporates offences under Acts of Parliament (such as the Criminal Code) as service offences under the Code of Service Discipline.  Whether punishments from the Criminal Code are incorporated into the Code of Service Discipline is a separate issue. 

Thus, this appeal arose from a joint submission, to which both military prosecutor and the defence agreed.  The military judge, Colonel Strickey, found that he did not have jurisdiction to impose the driving prohibition.  The prosecutor and defence counsel agreed that the remaining portions of the joint sentence submission would be an appropriate sentence if the military judge were to conclude that he lacked jurisdiction to make a driving prohibition order.  However, the military prosecutor (on behalf of the Minister of National Defence) sought appeal.

The appeal turned principally on three facets of statutory interpretation in Canada: (a) the fundamenatal principle of the "modern approach" to statutory interpretation in Canada; (b) the "equal authority rule" for the interpretation of bilingual legislation; and; (c) the legislative history of the relevant provisions.

First, the court relied upon the well-established principle from both the seminal treatise Construction of Statutes (in this case, the Court relied upon the 2nd Edition) which quoted from Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, para 21: "... the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament ...".  This is the key principle of the modern approach to statutory interpretation.

The court examined the provision at subs 130(2) of the NDA, which states:

Punishment

(2) Subject to subsection (3), if a court martial convicts a person under subsection (1), it shall,

(a) if the conviction was in respect of an offence

(i) committed in Canada under Part VII, the Criminal Code or any other Act of Parliament and for which a minimum punishment is prescribed, or

(ii) committed outside Canada under section 235 of the Criminal Code,

impose a punishment in accordance with the enactment prescribing the minimum punishment for the offence; or

(b) in any other case,

(i) impose the punishment prescribed for the offence by Part VII, the Criminal Code or that other Act, or

(ii) impose dismissal with disgrace from Her Majesty’s service or less punishment.

Director of Military Prosecutions (DMP) argued that paragraph 130(2)(a) of the NDA requires imposition of the mandatory minimum punishments prescribed in the legislation creating the offence whereas subparagraph 130(2)(b)(i) of the NDA affords a court martial discretion to impose any punishment prescribed in Part VII of the NDA, the Criminal Code, or other legislation, for offences for which no minimum punishment is prescribed.

Conversely, while the defence (respondent in the appeal) agreed that paragraph 130(2)(a) of the NDA requires imposition by a court martial of a minimum sentence where the provision creating the offence requires the imposition of such a sentence, they disagreed regarding the interpretation of para 130(2)(b).  The respondent argued that para 130(1)(b) of the NDA incorporates the maximum penalties from civilian systems, thereby ensuring that the relevant maximums are the same in the two systems.

And that brings us to the second aspect of statutory interpretation in Canada relevant to this judgment: Canada's bilingualism and the "equal authority rule".  English and French versions of federal laws are equally valid, requiring judges to read both texts together to find the shared, consistent meaning, or a meaning common to both if they diverge, ensuring neither language version takes precedence.

The respondent pointed to the French version of sub-para 130(2)(b)(ii) of the NDA which uses the words “... comme peine maximale, la destitution ignominieuse du service de sa Majesté ...”, which, the respondent says, demonstrates that the paragraph sets out the maximum punishments that may be imposed but does not grant sentencing options outside the list of punishments in section 139 and elsewhere in the NDA.

Consequently, the respondent argued that the "or" between sub-paras 130(2)(b)(i) and 130(2)(b)(ii) must be read disjunctively, which is the typical interpretation of that legislative terminology.  The respondent argued that this was the only way that the two provisions made legislative sense.

As the Court observed at para 34 of the judgment:

[34]  Central to this determination is the presence of the word “or” between subparagraphs 130(2)(b)(i) and (ii) of the NDA. The use of this word indicates that the two paragraphs are to be understood as offering different options. As noted by Ruth Sullivan in The Construction of Statutes, 7th ed (Toronto: LexisNexis Canada, 2022) ... at page 98, “[c]ourts often declare that ‘and’ is conjunctive and ‘or’ is disjunctive, but to avoid absurdity they must sometimes read ‘and’ as if it said ‘or’ — or vice versa”. In the present case, no absurdity results from reading the “or” between paragraphs 130(2)(b)(i) and (ii) of the NDA disjunctively. Rather, an absurdity would result if “or” were read conjunctively, since it would be redundant to list the same punishments twice. Thus, the text of subparagraphs 130(2)(b)(i) and (ii) of the NDA supports the respondent’s reading of the provision.

This interpretation was reinforced having regard to the French version of the NDA.

The third aspect of statutory interpretation relevant to this judgment was the legislative history of the NDA, particularly in the context of past judgments by appellate courts. and various reviews of the NDA.  The DMP argued that past judgments of the CMAC and of the Supreme Court of Canada, which stated that sentencing options available in the military justice system are different from those in the civilian system, were not binding because the range of sentencing options available to courts martial was not squarely at issue in those cases.

The CMAC rejected this argument, offering several examples including: R v Edwards, 2024 SCC 15; R v Stillman, 2019 SCC 40; R v Dixon, 2005 CMAC 2;  R v Trépanier, 2008 CMAC 3; R v Ellis, 2010 CMAC 3; and R v Darrigan, 2020 CMAC 1.  The CMAC examined the history of the evolution of the disputed provision, and past reviews of legislation, including the Independent Reviews of the NDA, demonstrating not only the legislative intent that the military justice system focuses on different sentencing purposes and objectives, but that punishments to be imposed by a court martial must be expressly provided in the NDA.

[As an aside, approximately six years ago, the author of this post previously posed the (somewhat rhetorical) question: Why are Conditional Discharges not available to Courts Martial in Canada?  (see also, the same post on the Global Military Justice Reform Blog).  If the interpretation offered by the DMP were correct, that would mean that military judges would have the power to impose a conditional discharge following a finding of guilt at court martial, notwithstanding that the NDA only permits absolute discharges.  As the author observed in the Blog post of March 2020, the lack of jurisdiction to impose a conditional discharge was problematic.  And DMP did not seem to be rushing to suggest that conditional discharges should be available to military judges.]
 
At paras 65 and 66 of the judgment, the Chief Justice of the CMAC concluded, on behalf of the Court: 

[65] ... The case law makes it clear that this purpose is served by the distinct sentencing regime that applies in the military justice system, as the above citations illustrate. This purpose is served by the interpretation of paragraph 130(1)(b) of the NDA that I have determined appropriate and would not be served by the interpretation proposed by the prosecution.

[66]  Hence, the text, context, and purpose of the provisions at issue lead to the conclusion that the Military Judge correctly interpreted his sentencing authority and that this appeal must be dismissed.