Cases decided by the U.S. Court of Appeals for the Armed Forces on full opinion during the present Term of Court

as of August 30, 2022. The Term ends on September 30, 2022.

Dave Philipps writes about BUD/S

Dave Philipps , who wrote powerfully about the court-martial of SEAL Chief Petty Officer Edward R. Gallagher, has the lead story in this morning's New York Times: "Death in Navy SEAL Training Exposes a Culture of Brutality, Cheating and Drugs. The elite force’s selection course is so punishing that few make it through, and many of those who do resort to illicit tactics."

Not military justice, but . . .

 Just Security has posted this excellent essay by George Croner: A Damage Assessment of Trump’s “Declassification Defense.” Required reading for anyone dealing with classified information. Excerpt:

In this article, I focus on a specific aspect related to the national security risks from the disclosure of such documents. I address on its own terms Trump and his allies’ claim that, while president, he issued either a general or standing declassification order that covered these documents. If that is to be the defense on which the former president relies in the court of public opinion or in a court of law, we should understand the national security implications that would flow from such a presidential decision. It should be shocking to the American public and to jurors in a courtroom to hear such a line of defense to allegations of mishandling national defense information. That justifiable shock can come, however, only if people comprehend the grievous harms to national security from any such order.

R v MacPherson, 2022 CMAC 8: retrospective application of jurisdiction of the Code of Service Discipline

On 23 August 2022, the Court Martial Appeal Court of Canada (CMAC) handed down its judgment in R v MacPherson, 2022 CMAC 8, upholding the judgment at first instance by Military Judge, Commander (Cdr) S. Sukstorf: R v MWO MacPherson, 2021 CM 2014. 

The outcome of the judgment was not particularly surprising.  On 8 September 2021, Cdr Sukstorf terminated the court martial convened to try Master Warrant Officer (MWO) MacPherson on two counts of sexual assault, contrary to section 271 of the Criminal Code, and incorporated into the Code of Service Discipline by virtue of para 130(1)(a) of the National Defence Act (NDA).  Although MWO MacPherson had been charged under the Code of Service Discipline in 2019, and the charges were preferred for court martial on 10 December 2019, the allegations dated from a period of time between August and October 1998.

Those dates were significant.  By virtue of section 70 of the NDA that was in force at that time, charges of sexual assault, alleged to have occurred within Canada, could not be prosecuted before court martial.  By virtue of significant amendments to the Code of Service Discipline introduced by Bill C-25 (An Act to Amend the National Defence Act), section 70 of the NDA was amended to remove the prohibition against prosecution, before court martial, of sexual assault, sexual assault with a weapon, and aggravated sexual assault.  These amendments were driven by public opinion in the 1990s that this lack of jurisdiction for the Code of Service Discipline hampered its capacity to maintain the discipline, efficiency, and morale of the Canadian Forces (CF).  These amendments came into force on 1 September 1999.  That factor can be contrasted with recent opinions that such charges should not be prosecuted within the 'military justice system'.

Section 70 of the NDA lists (and listed) offences that, when alleged to have been committed in Canada, cannot be tried by court martial.  [NB: The offences that were, and are, listed at section 70 cannot be tried by Summary Trial.]  The issue at trial in MacPherson was whether the amendments to section 70 of the NDA had retrospective application.  In other words, once the amendment came into force on 1 September 1999, was there jurisdiction under the Code of Service Discipline where charges were laid on or after this date, even if they were alleged to have occurred prior to that date.  The provision refers to the jurisdiction of courts martial to try the listed offences; it does (and did) not speak to the general jurisdiction of the Code of Service Discipline.

In order for a provision to have retrospective application, there must be a clear expression from Parliament as to its intention regarding the legislative amendments in question with respect to transitional provisions: R v Dineley, 2012 SCC 58.  The issue for Cdr Sukstorf was whether the legislative amendments to the NDA communicated such clear intent.  In her judgment, she offered compelling reasons why Parliament did not provide such clear expression of intent.

The CMAC concluded that Cdr Sukstorf was correct:

... There is no clear Parliamentary intent that the amendment to s. 70 of the NDA is to have retrospective effect. Furthermore, the amendment affects substantive rights of accused and convicted persons. Those include a right to be tried by jury and the right not to be subjected to more severe punishment than was available at the time of the alleged offence. Consequently, the amendment to s. 70 does not apply retrospectively. [per Bell CJ, at para 43, for a unanimous Court]

In light of Cdr Sukstorf's comprehensive and compelling reasons at trial, this outcome was not surprising.  One might be inclined to observe that this CMAC judgment is noteworthy because it decisively concludes that "Service tribunals do not have jurisdiction to try sexual assault offences alleged to have occurred in Canada prior to September 1, 1999."  While this is true, it is noteworthy for several other reasons, including:

1.  At first instance, Cdr Sukstorf considered the issue on the Court's own motion.
2.  The matter had been referred to a civil Crown Attorney, who declined to proceed.
3.  In its judgment, the CMAC offers some critical comments regarding the fairness of service tribunals.

Cases decided by the U.S. Court of Appeals for the Armed Forces on full opinion during the present Term of Court

as of August 25, 2022. The Term ends on September 30.