Date: 20180919

Docket: CMAC-588

Citation: 2018 CMAC 4

[ENGLISH TRANSLATION]

CORAM :

BELL C.J. GAGNÉ J.A. OUELLETTE J.A.

 

BETWEEN :

CORPORAL R.P. BEAUDRY

Appellant

and

HER MAJESTY THE QUEEN

Respondent

Heard at Ottawa, Ontario, on February 23, October 31, 2017 and January 30, 2018.

Judgment delivered at Ottawa, Ontario, on September 19, 2018.

REASONS FOR JUDGMENT BY:	OUELLETTE J.A.
CONCURRED IN BY:	GAGNÉ J.A.
DISSENTING REASONS BY :	BELL C.J.

 

Date: 20180919

Docket: CMAC-588

Citation: 2018 CMAC 4

CORAM :

BELL C.J. GAGNÉ J.A. OUELLETTE J.A.

 

BETWEEN :

CORPORAL R.P. BEAUDRY

Appellant

and

HER MAJESTY THE QUEEN

Respondent

REASONS FOR JUDGMENT

OUELLETTE, J.A.

I.  Introduction

[1]  A court martial sitting without a jury found Corporal Beaudry guilty of sexual assault causing bodily harm, an offence under paragraph 272(1)(c) of the Criminal Code, R.S.C., 1985, c. C-46 [Criminal Code].

[2]  When the charges were brought against him, Corporal Beaudry was a member of the Regular Force component of the Canadian Armed Forces. Before his trial, he asked to be tried by a judge and jury, a request that was denied. According to paragraph 130(1)(a) of the National Defence Act, R.S.C., 1985, c. N-5 [NDA], the offences in the Criminal Code are service offences that can be tried in the military justice system.

[3]  The appellant argues that paragraph 130(1)(a) violates subsection 11(f) of the Canadian Charter of Rights and Freedoms, part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [Charter], by depriving him of his right to a trial by jury for a civil offence.

II.  Issues

[4]  This appeal raises the following issues:

A.  Is this Court bound by the decisions in Royes and Déry?

B.   Does paragraph 130(1)(a) of the NDA violate subection 11(f) of the Charter?

C.  If so, is this violation justified within the meaning of the section 1 of the Charter?

III.  Jurisprudential context

[5]  Following his conviction, Corporal Beaudry appealed the guilty verdict, pleading that paragraph 130(1)(a) of the NDA violates subsection 11(f) of the Charter by depriving him of his right to a trial by judge and jury. This provision considers a “service offence” that can be tried by the military justice system to be any offence committed by persons subject to the Code of Service Discipline of the Canadian Armed Forces (active members of the Forces and other persons connected with the Forces) [Code of Service Discipline]. The act or omission must be an offence under Part VII of the NDA, the Criminal Code, or any other federal statute.

[6]  Since the appellant filed his notice of appeal, this Court has ruled on the constitutionality of paragraph 130(1)(a) of the NDA in R. v. Royes, 2016 CMAC 1, [2016] C.M.A.J. No. 1 (leave to appeal to the Supreme Court of Canada dismissed, 37054 (February 2, 2017)), and R. v. Déry, 2017 CMAC 2, [2017] C.M.A.J. No. 2 (leave to appeal to the Supreme Court  allowed, 37701 (March 8, 2018)). On April 11, the Supreme Court also allowed the appellants’ motion in Déry to suspend the time limit for filing their memorandum until this Court has ruled on this appeal.

[7]  In Royes, this Court unanimously dismissed the challenge of paragraph 130(1)(a) of the NDA and found that it was consistent with subsection 11(f) of the Charter. Faced with the same constitutional challenge the following year, the panel of three judges in Déry found they were bound by Royes by virtue of the principle of judicial comity and the doctrine of res judicata by earlier panels of the Court (the principle of horizontal stare decisis). However, in a strongly reasoned obiter dictum, the majority judges said they disagreed with the Court’s reasoning in Royes and listed five reasons for which, if they did not feel bound by that decision, they would have departed from it and found that paragraph 130(1)(a) of the NDA must be interpreted by applying a military nexus test [military nexus] to be consistent with subsection 11(f) of the Charter. In so doing, they would have maintained the Court’s previous line of jurisprudence, as expressed in R. v. Larouche, 2014 CMAC 6, [2016] C.M.A.J. No. 6, and R. v. Moriarity, 2014 CMAC 1, [2014] C.M.A.J. No. 1 [Moriarity CMAC].

IV.  Appellant’s position

[8]  The appellant cites several of the reasons expressed by the majority in Déry and argues that they should lead to the conclusion that paragraph 130(1)(a) of the NDA violates subsection 11(f) of the Charter. However, he does not share the majority’s finding that, when interpreted correctly, meaning as requiring the existence of a military nexus, this provision does not violate subsection 11(f) of the Charter. In R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485 [Moriarity SCC], the Supreme Court found that paragraph 130(1)(a) could apply in situations where the only military nexus is the status of the accused, while remaining rationally connected to the purpose of the challenged provision, that is, the maintenance of the discipline, efficiency and morale of troops. The appellant argues that requiring any other “military nexus” is not an appropriate remedy, pursuant to section 52 of the Constitution Act, 1982, and does not ensure that an offence incorporated into the NDA by paragraph 130(1)(a) is a “service offence” within the meaning of subsection 11(f) of the Charter.

[9]  The appellant notes that neither the Supreme Court of Canada nor this Court has addressed the objective of subsection 11(f). He argues that the meaning of “under military law tried before a military tribunal” (“relevant de la justice militaire”) must be defined before determining whether paragraph 130(1)(a) of the NDA violates the constitutional right in question. According to the appellant, a statutory definition that has no connection with the right to a trial by jury cannot restrict the scope of the constitutional right to a jury trial.

V.  Crown’s position

[10]  The respondent considers the issues in this case to have already been resolved: In Royes, this Court concluded that paragraph 130(1)(a) of the NDA creates offences under military law and that this finding is consistent with the Supreme Court’s decision in Moriarity SCC. Furthermore, the respondent argues that in considering itself bound by Royes, the panel of this Court in Déry acted so as to promote the stability and predictability of law.

VI.  Statutory provisions

[11]  Paragraph 130(1)(a) provides that:

[12]  The text of subsection 11(f) reads as follows:

VII.  Analysis

A.  Is this Court bound by the decisions in Royes and Déry?

[13]  In Royes, this Court ruled that paragraph 130(1)(a) of the NDA did not violate subsection 11(f) of the Charter. However, the majority judges in Déry arrived at a different conclusion in the absence of a military nexus. They performed a detailed analysis of five relevant factors: 1) the Supreme Court specifically left open the subsection 11(f) issue in Moriarity SCC; 2) the analysis required under subsection 11(f) is different from that required under section 7 of the Charter; 3) Charter rights should be given a generous and purposive interpretation; 4) the emerging international consensus to restrict the scope of military jurisdiction in criminal proceedings; and 5) the interpretation of subsection 11(f) should be informed by the Charter and not by Parliament. Contrary to the findings of the Court in Royes, the majority judges in Déry arrived at the conclusion that, in the absence of a military nexus, paragraph 130(1)(a) of the NDA violates subsection 11(f) of the Charter and that the discretion granted to the prosecution to choose the forum that will try the offence cannot remedy that violation.

[14]  However, the majority judges in Déry said they were bound by Royes in applying the principle of horizontal stare decisis. They based their finding primarily on Young v. Bristol Aeroplane Co. Ltd., [1944] EWCA Civ 1, [1944] 2 All E.R. 293 and R. v. Vezina, 2014 CMAC 3, [2014] C.M.A.J No. 3.

[15]  In Vezina, this Court found that it was bound by Moriarity CMAC because the appellant had not demonstrated that that decision contained a manifest error.

[16]  In Young, Lord Greene M.R. presents three reasons for a Court to deviate from its own jurisprudence: 1) to resolve a conflict between decisions of the same court; 2) to correct non-compliance with a decision of the Supreme Court (the House of Lords); and 3) in the case that a previous decision was given per incuriam or contrary to a precedent or statutory provision binding the Court.

[17]  This restrictive approach, set out by England in 1945, was further developed in Canada, namely by the Ontario Court of Appeal in David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 76 O.R. (3d) 161, 199 O.A.C. 266 (leave to appeal dismissed, 31095 (January 26, 2006)), where the Court made the following remark:

118  Lord Denning once wrote, “The doctrine of precedent does not compel your Lordships to follow the wrong path until you fall over the edge of the cliff”, to which Justice Brandeis might have replied: “It is usually more important that a rule of law be settled, than that it be settled right”: see Ostime v. Australian Mutual Provident Society, [1960] A.C. 459 at 489 and Di Santo v. Pennsylvania, 273 U.S. 34 at 270 (1927) respectively. These words, by two great jurists, capture the essence of the debate about stare decisis.

[Citation omitted.]

[18]  The Ontario Court of Appeal expressed the view that a provincial court of appeal acts as a last-resort tribunal in the vast majority of cases and, consequently, it is insufficient to always leave it to the Supreme Court to correct the errors.

[19]  This notion was recently reiterated in R. v. Gashikanyi, 2017 ABCA 194, 53 Alta. L.R. (6th) 11. The majority judges of the Alberta Court of Appeal gave a consistent summary, at paragraphs 6 to 14, of the principles underlying the doctrine of horizontal stare decisis. They noted that the doctrine will not be applied too strictly when the case raises an issue relating to a citizen’s freedom.

[20]  In R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, the Supreme Court notes, at paragraph 44, that the Court’s practice is against departing from its precedents unless there are compelling reasons to do so. However, it notes that it may do so when constitutional issues, and especially Charter rights and freedoms, are concerned. It adds that the Court should be particularly careful before reversing a precedent where the effect is to diminish Charter protection. It logically follows that an intermediate court of appeal may, in appropriate cases, depart from previous decisions when it must make a more generous interpretation of the scope of a right guaranteed by the Charter (see also the Court’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72).

[21]  According to that jurisprudence, it would be inappropriate to make a rigid application of the principles of res judicata and judicial comity when the issue is likely to affect a citizen’s rights and freedoms guaranteed by the Charter. To reiterate the principle set out by the Supreme Court, the interests concerned may constitute “compelling reasons” for deviating from a precedent.

[22]  The majority judges in Déry did not qualify the five reasons cited as manifest errors to then conclude that the Court’s decision in Royes was unfounded. However, I am of the view that, together, these reasons at the very least meet the criterion of a manifest error. Therefore, it is impossible to reconcile the conclusions reached in the two cases on the constitutionality of paragraph 130(1)(a) of the NDA, at least when applied to the offence at issue in this appeal.

[23]  Based on the Supreme Court decision in Canada v. Craig, 2012 SCC 43, [2012] 3 S.C.R. 489, the majority judges felt they were obligated to express why they found that Royes presents certain issues. However, in Craig, they were not charged with criticizing a decision of the same intermediate court of appeal while considering themselves bound by it, but rather with criticizing a precedent of the Supreme Court of Canada rather than overruling it. The following is an excerpt from the reasons of Justice Rothstein on which the majority judges in Déry based their findings:

[21]  But regardless of the explanation, what the [Federal Court of Appeal] in this case ought to have done was to have written reasons as to why Moldowan [Supreme Court of Canada precedent] was problematic, in the way that the reasons in Gunn [Federal Court of Appeal decision] did, rather than purporting to overrule it.

[24]  With respect, I do not find that this excerpt justifies an intermediate court of appeal exposing the errors committed by a previous panel if the objective is not to overrule it. In Craig, the fact that the Federal Court of Appeal criticized the Supreme Court decision in Moldowan (which had already received a number of criticisms from the legal community) did not have the effect of creating any uncertainty about the state of the law since the Supreme Court decision, and not the Federal Court of Appeal’s decision, was imposed on the litigants. In Déry, the fact that the Court criticized the decision in Royes in such a well-reasoned obiter without overruling it, in my humble opinion, creates uncertainty about the state of the law. This is all the more true when this uncertainty concerns a Charter right. The fact that this obiter can create uncertainty is a factor that enables this panel not to feel bound by its previous decisions on the constitutional question in this case.

[25]  Lastly, given that the Court is presently divided on the constitutionality of paragraph 130(1)(a) of the NDA, and that the Supreme Court granted leave to appeal to the members in Déry and stayed its case pending a decision in this case, I am of the view that we should rule on the merits of the question, irrespective of Royes and Déry.

B.  Does paragraph 130(1)(a) of the NDA violate subsection 11(f) of the Charter?

(1)  The majority decision in Déry

[26]  I am in substantial agreement with the reasons of the majority set out in paragraphs 18 to 84 of Déry. In particular, I agree with the analysis and reasoning discussed in the following paragraphs: 18, 23–25, 27–31, 33–46, 48–77 and 79–84.

[27]  In paragraphs 58 and 79, the majority held that the first step was to articulate the purpose of subsection 11(f) in order to determine the interests that this provision is meant to protect. However, the narrow exception of subsection 11(f), that is “under military law” / “relevant de la justice militaire”, has not been defined. In my view, we must define “military law” / “justice militaire” first and then proceed to the question as to whether paragraph 130(1)(a) of the NDA violates the right to a trial by jury guaranteed by the Charter.

[28]  I concur with the majority that Parliament cannot define the right guaranteed in subsection 11(f) of the Charter by adopting or amending the NDA. As stated by the majority:

[76]  […] Section 11(f) of the Charter is not cast in such terms as to leave open to the legislature the authority to define the scope of the right guaranteed by the section. […]

[29]  Similarly, I agree with the observation made in Royes and Déry that Parliament can amend and even repeal the NDA to remove the restrictions on military jurisdiction for certain offences, such as murder, as provided in section 70. Nonetheless, such an amendment to the NDA would have no bearing on whether the Charter has been violated in this case.

[30]  However, and with respect, I cannot agree that including the concept of a military nexus in paragraph 130(1)(a) of the NDA is sufficient to immunize it against a constitutional violation (see paragraphs 85–86 of Déry). Below, I will explain why, in my view, this proposal must be rejected.

(2)  The purpose of subsection 11(f) of the Charter

[31]  In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at page 344, 1985 CanLII 69 (SCC), the Supreme Court outlined the approach to be taken in determining the purpose of a constitutional right. First, the following three factors must be considered:

(a)  the historical origins of the concepts enshrined;

(b)  the character and larger objects of the Charter itself; and

(c)  the language chosen to articulate the right.

a)  The historical origins of the concepts enshrined

[32]  As of 1689 (Mutiny Act, 1689, 1 William 3 and Mary 2 (UK)), all members have had the right to a trial by jury. The sole exception to this right would apply when it was imperative to consider the requirements of military discipline and the efficiency of the armed forces. The relevant passage from the Mutiny Act reads as follows:

 ...and whereas no man may be forejudged of life or limb, or subjected to any kind of punishment by martial law, or in any other manner than by the judgment of his piers and according to the known and established laws of this realm; yet nevertheless, it being requisite for retaining such forces as are or shall be raised during this exigence of affairs in their duty an exact discipline be observed, and that soldiers who shall mutiny or stir up sedition or shall desert their Majesties’ service be brought to a more exemplary and speedy punishment than the usual forms of law will allow.

[33]  Even though the Mutiny Act does not provide any definition of “military law” or “justice militaire”, it certainly implies that the summary proceedings of the military justice system would apply to acts related to sedition, desertion and mutiny.

[34]  In the 1886 book A Catechism on Military Law as Applicable to the Militia of Canada (Montréal, John Lovell & Son, 1886), the author, Major J. Pennington MacPherson, asks the following questions at the beginning of the first chapter:

Q1:  What is Military law?

A1:  Military law, as distinguished from Civil law, is the law relating to and administered by the Military Courts and concerns itself with the trial and punishment of offences committed by officers, soldiers and other persons (e.g. sutlers and camp followers), who are, from circumstances, subjected, for the time being, to the same law as soldiers.

Q2:  What necessity is there for Military law apart from Civil law?

A2:  To enable the Military authorities to deal with offences which it would be inexpedient to leave to Civil authorities. Many acts and omissions, which are mere breaches of contract in Civil life – e.g. desertion or disobedience to orders – must, if committed by soldiers, even in time of peace, be made crimes, with penalties attached to them; while, on active service, any act or omission which impairs the efficiency of a man in his character of a soldier must be punished with severity.

[35]  The author therefore justifies the existence of, and need for, “military law” or “justice militaire” in cases where it would not be expedient to apply the ordinary law before the ordinary courts. According to him, certain infractions or omissions are mere breaches of contract for civilians yet constitute actual offences for soldiers. Offences such as desertion, breach of duty and wartime offences will be dealt with more seriously.

[36]  In addition, a careful reading of the book Manual of Military Law (London, Harrison & Sons, 1907) suggests that the structure and content of the NDA is based on the principles contained therein. The first paragraph of the second chapter, entitled “History of Military Law,” provides the following definition of “military law”:

Military Law, as distinguished from Civil law, is the law relating to and administered by military courts, and concerns itself with the trial and punishment of offences committed by officers, soldiers, and other persons (e.g. sutlers and camp followers) who are from circumstances subjected, for the time being, to the same law as soldiers. This definition is to a great extent arbitrary, the term “Military law” being frequently used in a wider sense, to include not only the disciplinary, but also the administrative law of the army, as, for instance, the law of enlistment and billeting. In this chapter, however, the term is used only in the restrictive sense above mentioned.

[37]  The second paragraph of this book’s second chapter identifies the purpose of military law:

The object of Military law is to maintain discipline among the troops and other persons forming part of or following an army. To effect this object, acts and omissions which are mere breaches of contract in civil life – e.g., desertion or disobedience to orders – must, if committed by soldiers, even in time of peace, be made offences, with penalties attached to them; while, on active service, any act or omission which impairs the efficiency of a man in his character of a soldier must be punished with severity.

[38]  In the third paragraph of the second chapter, the author adds the following:

“In the early periods of our history, military law existed only in the time of actual war... Military law, in time of peace, did not come into existence until the passing of the first Mutiny Act in 1689.”

[39]  He goes on to explain the structure of the Army Act, which gave rise to the NDA, and the content of its various parts. He lists various offences under military law, the applicable penalties and the offences punishable by ordinary law. Paragraph 3 of the third chapter reads as follows:

“For the most part, the military offences are laid down by the Army Act in the same, or nearly the same language as that of the former Mutiny Acts and Articles of War.”

[40]  Chapter 7 of the book is devoted to offences punishable by ordinary law. The author explains the following in the first paragraph:

A soldier, however is, not only a soldier but a citizen also and as such is subject to the civil as well as the Military law. An act which constitutes an offence committed by a civilian is nonetheless an offence if committed by a soldier and a soldier not less than a civilian can be tried and punished for such an offence by the civil courts.

[41]  It is apparent from this quotation that the key distinction resides in the nature of the offence and not the mere fact that the offence has been committed by a soldier. The author explains the following in the second paragraph:

In order to give military courts complete jurisdiction over soldiers, those courts are authorized to try and punish soldiers for civil offences, namely offences which have been committed in England are punishable by the law in England.

[42]  However, he describes the jurisdiction of the courts martial as follows:

They are not allowed to try the most serious offences – treason, murder, manslaughter, treason-felony or rape – if those offences can with reasonable convenience, be tried by a civil court.

[43]  This limit on the power of the military courts is also noted in paragraph 3 of chapter 7:

But though this wide power of trial is given, it is not as a rule expedient to exercise the power universally.

[44]  The author goes on to state the principle that the accused’s ability to exercise the right to a trial by jury should increase with the severity of the offence (paragraph 3 of chapter 7):

The heinousness of an offence is also an element of consideration. A trifling offence, such as would, if tried before a civil court be properly punishable by a small fine, may well be punished by the military court immediately, especially if the case is one in which stoppages may be ordered to make good damage occasioned by the offence. On the other hand, a more serious offence, especially one which would ordinarily be tried by a jury, had better be relegated to the civil court.  (Emphasis added)

[45]  Accordingly, it seems that, in as early as 1689, a member was entitled to a trial by judge and jury, except in cases of mutiny, sedition or desertion.

[46]  In MacKay v. The Queen, [1980] 2 S.C.R. 370, 1980 CanLII 217 (SCC), McIntyre and Dickson JJ., concurring in the majority result, noted the existence of the principle that the soldier’s rights should be affected as little as possible and, more specifically, the right to request a trial by judge and jury (page 408). They described the principle in the following terms:

The principle which should be maintained is that the rights of the serviceman at civil law should be affected as little as possible considering the requirements of military discipline and the efficiency of the service.

[47]  They also determined that the all-embracing reach of the questioned provisions of the NDA, as they existed in 1980, went far beyond any reasonable or required limit.

b)  The character and larger objects of the Charter

[48]  The Charter is intended to promote freedom, justice and social equality, principles that are vital to our free and democratic society. These objectives find expression in all the rights and freedoms set out in the Charter, including its subsection 11(f). Given the nature of the very specific and special obligations of the armed forces, the military is subject to military discipline to ensure the efficiency of the armed forces. However, this is not justification for military status to result in an unjustified abridgement of a right enjoyed by any other Canadian citizen.

[49]  It follows that any limit on a right must be related to the maintenance of discipline, morale and efficiency of the armed forces. In the absence of such a connection, there is no reason why a member would not enjoy the same rights as any other Canadian citizen. Indeed, it would be ironic for those who have the ultimate responsibility of protecting freedom, justice and social equality, at the risk of their lives, to not enjoy these same rights.

c)  The wording of subsection 11(f) of the Charter

[50]  What is meant by the phrase “except in the case of an offence under military law tried before a military tribunal” / “sauf s’il s’agit d’une infraction relevant de la justice militaire”?

[51]  Unlike the French version of subsection 11(f), the exception in the English version has two aspects: the offence falls under military law (“offences under military law”) and the trial is before a military tribunal (“tried before a military tribunal”). This means that the exception in subsection 11(f) is not based solely on a military tribunal’s jurisdiction over the offence or the accused.

[52]  While the French and English versions of the text appear to differ significantly at first glance, I consider them to be reconcilable. The term “justice militaire” (“military law”) must be interpreted to encompass both the rules of substantive law (military law) and the tribunals set up to administer them (the military tribunals).

[53]  Once the two versions are reconciled, it appears that the drafters of the Charter were referring to military offences and not the mere fact that the accused person is a member or an individual subject to the Code of Service Discipline. Nothing in the wording of this provision indicates an intention to deprive any member accused of a civil offence (“offence punishable by ordinary law”) of the right to a trial by jury. The language suggests rather that this right will only be limited in the case of an offence that is essentially military in nature.

[54]  A number of offences under military law, listed in sections 72 to 129 of the NDA, are punishable by life imprisonment, such as misconduct of any person in presence of the enemy (s. 74), offences the accused has committed as a prisoner of war (s. 76), spying for the enemy (s. 78) and mutiny (s. 79). The offences that fall under military justice or, rather, military law, are very specific. The NDA devotes an entire division to identifying offences under military law: sections 72 to 129, Division 2, Part III, entitled “Code of Service Discipline.” This is, in fact, a codification of provisions of earlier acts dating back to 1689.  These are the offences that fall under military law within the meaning of subsection 11 (f) of the Charter.

[55]  Parliament does not have the authority to limit the right guaranteed in subsection 11(f) by expanding the definition of an “offence under military law”. Therefore, paragraph 130(1)(a) of the NDA entitled “Service trial of civil offences” cannot convert a “civil offence” into an offence under military law within the meaning of subsection 11(f) of the Charter.

(3)  Legislative context

[56]  In Moriarity SCC, the Supreme Court of Canada identified the legitimate objective of the military justice system, which is to maintain discipline, efficiency and morale in the military. That objective is logically related to how criminal behaviour by military personnel is treated, even outside the military context. This legitimate objective of paragraph 130(1)(a) is not inconsistent with the proposed interpretation of subsection 11(f).

[57]  Parliament chose to give service tribunals concurrent jurisdiction over civil offences.

[58]  When the Charter was adopted in 1982, Parliament acknowledged that the jurisdiction of service tribunals is limited. Section 60 of the NDA, as it read at that time, did not give service tribunals jurisdiction over the most serious civil offences. A member charged with murder, rape or manslaughter, in 1982, would not have been tried before a service tribunal with the concomitant right to a trial by judge and jury.

[59]  In 1989, Parliament replaced section 60 with section 70, thus modifying the limitations on certain offences and granting service tribunals concurrent jurisdiction over cases of rape. At the same time, Parliament added another limitation concerning the offences under sections 280 to 283 of the Criminal Code, regarding child abduction. There are no explanations for these amendments in the notes on the deliberations of the House of Commons.

[60]  Parliament does not have the authority to amend the NDA to limit or repeal rights guaranteed by the Charter. Furthermore, it is not necessary to deprive the member of the right to a trial by jury in such a case to ensure military discipline, efficiency and morale.

[61]  The NDA provides the possibility of applying the Code of Service Discipline, whether the member is tried before a service or civil tribunal. Subsection 130(4) reads as follows:

[62]  Subsection 129(1) provides that:

[63]  There is a logic between sections 129 (Prejudicing Good Order or Discipline) and 130 (Offences Punishable by Ordinary Law) with regard to sentncing. Subsection 139(1) sets out a scale of sentences in order of decreasing severity: (a) imprisonment for life; (b) imprisonment for two years or more; (c) dismissal with disgrace from Her Majesty’s service; (d) imprisonment for less than two years; (e) dismissal from Her Majesty’s service; (f) detention; (g) reduction in rank; (h) forfeiture of seniority; (i) severe reprimand; (j) reprimand; (k) fine; and (l) minor punishments.

[64]  The sentence for an offence under paragraph 130(1)(a) of the NDA is the same as that provided for in the Criminal Code. The maximum sentence is dismissal with disgrace from Her Majesty’s service (130(2)(b)(ii)). The sentences of dismissal with disgrace and lesser are available whether the offence is punishable by imprisonment of less than five years (section 130) or more than five years (subsection 129(1)). The sentencing and enforcement of the Code of Service Discipline are therefore the same, regardless of whether a member’s trial is before a civil or service tribunal.

[65]  The appellant observed that military authorities continue to have some control over a member being tried by a civil judge and jury: 1) an officer attends the soldier’s trial to inform the military authorities who will decide what administrative measures to impose; 2) a trial by civil judge and jury does not exempt the soldier from the application of the range of administrative orders and directives governing the soldier’s conduct and discipline; and 3) the soldier tried by judge and jury is still subject to the Code of Service Discipline.

[66]  In short, a member’s trial may be held before a civil tribunal with the member still remaining subject to the Code of Service Discipline. This calls into serious question the need to apply the criterion of a military nexus in order to make paragraph 130(1)(a) of the NDA consistent with subsection 11(f) of the Charter.

(4)  Conclusion

[67]  Historically, members were entitled to a trial by jury for civil offences. Paragraph 130(1)(a) of the NDA has the effect of depriving any member of the right to a trial by judge and jury, even in the case of a civil offence. By amending the NDA, Parliament acted to limit the right to a jury guaranteed by subsection 11(f) of the Charter.

C.  Is this violation justified within the meaning of the section 1 of the Charter?

[68]  The objective of paragraph 130(1)(a) is to ensure the maintenance of the discipline, efficiency and morale of troops within the Canadian Armed Forces. The foregoing indicates that whether a trial is held before a service tribunal or a civil tribunal composed of a judge and jury has no effect on the application of the Code of Service Discipline and therefore on the discipline, efficiency and general morale of the Canadian Forces. In other words, the provisions of the NDA provide the necessary means of ensuring the discipline, efficiency and morale of troops, regardless of whether the convicted person’s trial is before a service tribunal or a civil tribunal with a jury.

[69]  For the above reasons, I find that the violation is not justifiable under section 1 of the Charter.

[70]  I would add that no provision of the Charter limits the rights provided therein in times of war. In applying the measures set out in the Emergencies Act, R.S.C., 1985, c. 22 (4th Supp.), the Governor in Council remains subject to the Charter and the Canadian Bill of Rights, S.C. 1960, c. 44, and must consider the International Covenant on Civil and Political Rights, December 19, 1966, 999 UNTS 171 (entered into force: March 23, 1976, accession by Canada May 19, 1976), namely with regard to the fundamental rights that cannot be violated even in national crisis situations.

VIII.  Decision

[71]  Subsection 11(f) of the Charter provides that any person charged with an offence has the right to a trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment, except in the case of an offence under military law. Civil offences are not offences under military law. Paragraph 130(1)(a) of the NDA is unconstitutional because it deprives a member of the right to a trial by judge and jury for a civil offence for which the maximum sentence is five years or more.

[72]  Paragraph 130(1)(a) of the NDA is declared of no force or effect in its application to any civil offence for which the maximum sentence is five years or more, in accordance with subsection 52(1) of the Constitution Act, 1982.

“Vital Ouellette”

“I agree

Jocelyne Gagné J.A. ”

BELL C.J. (Dissenting Reasons)

I.  Overview

[73]  The principal issue in this appeal can be set out in a sterile and legalistic fashion, namely: does paragraph 130(1)(a) of the National Defence Act, R.S.C. 1985, c. N-5 [NDA] violate the Charter right to a jury trial by denying those who are subject to the Code of Service Discipline the right to such a trial where charges involve civil offences allegedly committed in Canada? In my view, the answer to this question will determine the future of the military justice system in Canada. I would therefore frame the overarching question as follows: what was Parliament’s intention when it carved out the military exception in subsection 11(f) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (U.K.), 1982, c. 11 [Charter]?

[74]  For the reasons set out below, I would conclude that paragraph 130(1)(a) of the NDA does not violate the right to a jury trial provided for in subsection 11(f) of the Charter. In my opinion, by enacting subsection 11(f) of  the Charter, Parliament intended to preclude individuals subject to the Code of Service Discipline who are alleged to have committed service offences under paragraph 130(1)(a) of the NDA from having the right to a trial by jury. As a result, I would dismiss this appeal.

[75]  As I stated in R. v. Déry, 2017 CMAC 2, [2017] C.M.A.J. No. 2 [Déry], nothing in these reasons is intended to detract from the unanimous decision of this Court in R. v. Royes, 2016 CMAC 1, [2016] C.M.A.J. No. 1 [Royes]. These reasons are intended to build upon, and be read in conjunction with, Royes and my opinion in Déry.

II.  A few remarks about the Canadian military justice system

[76]  Through legislative enactments, the application of the Charter, and careful guidance from its Supreme Court, Canada has become a leader among nations in the development of military justice. As evidenced in several key cases (e.g., MacKay v. The Queen, [1980] 2 S.C.R. 370, 114 D.L.R. (3d) 393 [MacKay]; R. v. Généreux, [1992] 1 S.C.R. 259, 88 D.L.R. (4th) 110; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485 [Moriarity]; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983 [Cawthorne]; Royes; Déry), the Canadian judicial and legislative branches have engaged in constructive dialogue that has led to the development of a system of military justice respectful of its pre-1867 origins, section 91 of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), and its obligations under the Charter, including subsection 11(f).

[77]  Subject to limited exceptions found in section 70 of the NDA, our military tribunals (hereafter referred to as “courts martial”) enjoy concurrent jurisdiction with the civilian justice system in relation to those offences under paragraph 130(1)(a) of the NDA. This concurrent jurisdiction does not, of course, apply to offences allegedly committed abroad (paragraph 130(1)(b) of the NDA). In my view, Parliament intended for prosecutorial services (see Cawthorne), writ large, to have a choice as to which system of justice – civilian or military – would be employed to prosecute individuals subject to the Code of Service Discipline for violations allegedly committed in Canada. I consider this choice both prudent and constitutionally valid given the application of the Charter to accused persons in both systems, the varying circumstances in which alleged infractions might arise, the need for varying degrees of flexibility and, among other issues, varying degrees of timeliness in provincial/territorial civilian justice systems. In addition, I would note that the Supreme Court of Canada resolved any jurisdictional confusion between the two systems in Moriarity by abolishing the nexus test, thereby respecting the original intention of the architects of the military justice system as to its jurisdiction.

[78]  I also note that paragraph 130(1)(a) of the NDA, or some version thereof, has existed since at least 1952, well before the Charter’s enactment in 1982 (see paragraph 119(1)(a) of the National Defence Act, R.S.C. 1952, c. 184 [NDA 1952], as well as paragraph 120(1)(a) of the National Defence Act, R.S.C. 1970, c. N-4 [NDA 1970]). For this reason, I consider the military exception in subsection 11(f) of the Charter to be an endorsement of the law in force at the time of its enactment and an expression of Parliament’s confidence in the military justice system, including its ability to hold fair service trials for civil offences under paragraph 130(1)(a) of the NDA. While it is trite law that laws in force at the time of the Charter’s enactment may be successfully challenged, the circumstances are much different where, as here, the law or system under attack finds protection in the Charter itself.

III.  The appeal in question

[79]  This is an appeal of the verdict delivered orally on July 14, 2016 by a Standing Court Martial [SCM]. In that verdict, the SCM found the appellant guilty of sexual assault causing bodily harm under paragraph 130(1)(a) of the NDA and section 272 of the Criminal Code, R.S.C., 1985, c. C-46 [Criminal Code]. The facts and the SCM’s conviction are not in dispute. The appellant claims that paragraph 130(1)(a) of the NDA is inconsistent with subsection 11(f) of the Charter, and is therefore unconstitutional.

IV.  Facts and statutory scheme

[80]  The appellant is a member of the Regular Force component of the Canadian Armed Forces and is subject to the Code of Service Discipline under paragraph 60(1)(a) of the NDA. The SCM found him guilty of sexual assault causing bodily harm under paragraph 130(1)(a) of the NDA and section 272 of the Criminal Code.

[81]  The provisions relevant to this appeal are reproduced in Appendix A.

V.  Issues

[82]  In this case, I consider there to be only one question to be answered to determine whether paragraph 130(1)(a) of the NDA violates subsection 11(f) of the Charter:

Is an offence under paragraph 130(1)(a) of the NDA an “offence under military law tried before a military tribunal”(“infraction relevant de la justice militaire”) within the intended meaning of subsection 11(f) of the Charter?

[83]  In addition to that question, it is important to consider whether this Court is bound by the decisions in Royes and Déry because of the principle of judicial comity. This question is undoubtedly moot given the decision of the Supreme Court of Canada allowing the application for leave to appeal in Déry, docket number 37701, on March 8, 2018. Nevertheless, I consider it important to address it, as well as to determine whether the differences between the French and English versions of subsection 11(f) of the Charter are meaningful.

VI.  Analysis

A.  Is the Court bound by the principle of judicial comity?

[84]  The appellant claims that the Court erred in Déry by failing to apply the standard of manifest error used in R. v. Vezina, 2014 CMAC 3, [2014] C.M.A.J. No. 3 [Vezina] to decide whether it was bound by the principle of judicial comity (also called the principle of horizontal stare decisis).

[85]  The Vezina decision was rendered by a unanimous bench and has not been reversed on this point. The standard of manifest error is therefore the correct standard for determining whether the Court is bound by the principle of judicial comity.

[86]  The standard of manifest error is not defined in Vezina. However, the Federal Court of Appeal [FCA] stated in Miller v. Canada (Attorney General), 2002 FCA 370, [2002] F.C.J. No. 1375 [Miller] that a decision is “manifestly wrong, in the sense that the Court overlooked a relevant statutory provision, or a case that ought to have been followed” (paragraph 10). According to Miller, a “manifest error” is the error of making a decision per incuriam, or in disregard of binding legal or statutory authority. The appellant does not explain how the standard of manifest error in Vezina differs from that in Miller. Therefore, I am of the opinion that the standard of manifest error in Vezina is the same standard established by the Court of Appeal in Miller.

[87]  In Déry, the Court had to determine whether it was bound by the decision in Royes. In its analysis, the Court considered the various approaches courts have adopted to decide whether they could disregard the principle of judicial comity. The Court identified three circumstances that could justify the reversal of a prior decision of the same court. Citing the applicable case law, including Vezina, the Court noted that one of these circumstances is when a prior decision was given per incuriam, or in disregard of binding statutory authority. That is what Miller identifies as the standard of manifest error. The Court then noted that it was impossible to say that the decision in Royes had been made per incuriam. In Royes, the Court examined the effect of Moriarity on the constitutionality of paragraph 130(1)(a) of the NDA in relation to subsection 11(f) of the Charter. The Court found that neither it nor the Supreme Court of Canada had ever rendered a conflicting decision with respect to the interpretation of Moriarity. Thus, the Court affirmed in Déry that the decision in Royes cannot be said to have been made per incuriam but, rather, was a fully reasoned treatment of the issue by a unanimous bench. Consequently, the Court concluded that it was bound by the decision in Royes.

[88]  I therefore find that the panel in Déry applied the correct standard to determine whether it was bound by the principle of judicial comity. In fact, it went beyond that standard and presented an analysis based fully on the legislation and case law. I agree with the statement in Déry on this topic. There was no manifest error in Royes, just as there was no manifest error in Déry. The Court is bound by those two decisions, which leads to a conclusion that this appeal should be dismissed.

[89]  In case I am wrong about this, I will continue my analysis.

B.  Are the differences between the French and English versions of subsection 11(f) of the Charter meaningful?

[90]  To facilitate my analysis, I will cite subsection 11(f) of the Charter below and highlight the part of the provision that pertains to this appeal:

[91]  In chapter 12 of the book Charte canadienne des droits et libertés, Montréal, Wilson & Lafleur, 1982, by Gérald-A. Beaudoin and Walter S. Tarnopolsky, dirs., the author André Morel analyzes the significance of the difference between the French and English versions of subsection 11(f) of the Charter. He explains that the French wording (“sauf s’il s’agit d’une infraction relevant de la justice militaire, de bénéficier d’un procès avec jury. . .”) is more general than the English wording (“except in the case of an offence under military law tried before a military tribunal. . .”) and encompasses any offence that falls under the jurisdiction of a service tribunal, whereas the English version is also qualified by the type of law that defines the offence. This difference gives rise to an argument that the ordinary law offences under paragraph 130(1)(a) were not intended to be included in the exception in subsection 11(f), being only offences “tried before a military tribunal” and not “offence[s] under military law”. For the reasons that follow, I find that this argument is based on an erroneous interpretation of subsection 11(f) of the Charter.

[92]  The book Sullivan on the Construction of Statutes by Ruth Sullivan (6^th edition, Markham, Ontario, LexisNexis, 2014) [Sullivan] provides a succinct summary of the principles of interpretation and the case law to be reviewed when analyzing bilingual statutes. According to that book, the two versions of a provision have equal weight (see Canadian Pacific Railway Co. v. Robinson, [1891] 19 S.C.R. 292, [1891] S.C.J. No. 26) and equal authority (see The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11, sections 18, 56-57). One does not take precedence over the other. Therefore, the courts must read and analyze both versions of the legislation (see New Brunswick v. Estabrooks Pontiac Buick Ltd., [1982] N.B.J. No. 397, 44 N.B.R. (2d) 201 (NB CA)). If there is a difference, discrepancy or ambiguity between the two versions, a Court must interpret both texts by comparing them to determine a common meaning. Once a common meaning has been determined, the Court must apply the principles of statutory interpretation to determine whether that meaning is consistent with legislative intent (see R. v. Daoust, [2004] 1 S.C.R. 217, [2004] S.C.J. No. 7, paragraph 30 [Daoust]).

[93]  With regard to the common meaning, I agree that the wording of the two texts seems different a priori. However, when the versions are studied in light of the principles of bilingual statutory interpretation, I find there is no real difference between the two.

[94]  In fact, I think that those who insist there is a difference between the French and English versions of subsection 11(f) of the Charter are confusing the concepts of “military justice” (“justice militaire”) and “military law” (“droit militaire”). These two concepts are not interchangeable. “Military justice” refers to a justice system based on military law and the jurisdiction of service tribunals, whereas “military law” is a narrower concept that does not include the tribunal’s jurisdiction. For that reason, I find that “relevant de la justice militaire” likely characterizes the nature of the tribunal and the type of law, which is the same meaning as the English version. The two versions can be interpreted as having a common meaning, which is that the only people deprived of a jury trial are those charged with a “service offence” before a service tribunal.

[95]  The reason offences covered by the military exception in subsection 11(f) of the Charter must be qualified by both the type of law and the nature of the tribunal is simple; some “offence[s] under military law” / “infractions de droit militaire”, such as a murder committed in Canada by a person subject to the Code of Service Discipline, are under the jurisdiction of civil tribunals (see section 70 of the NDA). Under such circumstances, the accused is entitled to a jury trial, because it is an “offence under military law” that is not “tried before a military tribunal”.

[96]  Subsection 11(f) imposes two very distinct requirements in its characterization of offences included in the military exception to the right to a jury trial. The objective of these requirements is not to guarantee the right to a trial by jury in the case of ordinary law offences under paragraph 130(1)(a), but rather to guarantee the right to a trial by jury in the case of service offences that are tried by civil tribunals. These two requirements are present in both the French and the English versions. The two versions can be reconciled by recognizing that the common meaning is that expressed in the English version. It is not appropriate to interpret the English version of subsection 11(f) of the Charter as proof of a legislative intent to exclude the ordinary law offences under paragraph 130(1)(a) from the exclusion set out in subsection 11(f) of the Charter.

C.  Is an offence under paragraph 130(1)(a) of the NDA an “offence under military law tried before a military tribunal” (“infraction relevant de la justice militaire”) within the intended meaning of subsection 11(f) of the Charter?

[97]  Having identified a common meaning between the two versions of subsection 11(f) of the Charter, I will now proceed to the second step of the exercise of interpreting bilingual statutes established in Daoust, which is to determine whether that meaning is consistent with Parliament’s intent.

[98]  Under subsection 2(1) of the NDA, “service offence” (“infraction d’ordre militaire”) includes all offences in the NDA, the Criminal Code or any other federal statute that is “committed by a person while subject to the Code of Service Discipline” (“passible de la discipline militaire”). Under paragraph 130(1)(a) and subsection 2(1), the offences punishable under the Criminal Code or any other federal statute are offences that can be tried by a service tribunal when committed by a person subject to the Code of Service Discipline. Therefore, the offences under paragraph 130(1)(a) are “offence[s] under military law tried before a military tribunal” (“infractions relevant de la justice militaire”) when they are committed by a person subject to the Code of Service Discipline and tried by a service tribunal. Once again, I note that it has been this way since long before the promulgation of the Charter in 1982.

[99]  That interpretation was confirmed by the Supreme Court in Moriarity at paragraph 8: “There is no explicit limitation in the text of s. 130(1)(a) to the effect that the offence must have been committed in a military context; it transforms the underlying offence into a service offence ‘irrespective of its nature and the circumstances of its commission’”. Accordingly, it is not possible to say that only disciplinary offences are offences under military law; the ordinary law offences under paragraph 130(1)(a) are also offences under the NDA and may be tried by a service tribunal. They are therefore necessarily offences under military law.

[100]  Since at least 1886 (just under 100 years before the promulgation of the Charter), “military law” (“droit militaire”) has been defined as being “the law relating to and administered by Military Courts, and concerns itself with the trial and punishment of offences committed by officers, soldiers, and other persons . . .”, and includes “[a]ll other laws applicable to Her Majesty’s troops in Canada” (see Major P. Macpherson, A Catechism on Military Law as Applicable to the Militia of Canada, Montréal, John Lovell & Son, 1886). Moreover, the Manual of Military Law, London, Harrison and Sons, 1907, states that “[i]n order to give military courts complete jurisdiction over soldiers, those courts are authorised to try and punish soldiers for civil offences, namely, offences which, if committed in England, are punishable by the law of England”. Therefore, to ensure the efficiency of trials and thus discipline, service tribunals have long held the authority to try offences of ordinary law committed by members.

[101]  For some time now, the jurisdiction to try ordinary law offences in the military justice system has been exercised in Canada without a jury trial (see, for example, sections 140, 145, 146 and 149 of the NDA 1952, and sections 145, 150, 151, 154 and 155 of the NDA 1970 to see the previous composition of courts martial in Canada). I do not share the opinion of the majority that, historically, members were entitled to a trial by jury.

[102]  In light of the above, I am of the opinion that Parliament intended to include the offences under paragraph 130(1)(a) of the NDA as “offence[s] under military law tried before a military tribunal” (“infraction[s] relevant de la justice militaire”) when drafting subsection 11(f) of the Charter. Parliament was presumably aware of the legal consequences of the military exception set out in subsection 11(f) of the Charter, and there is every indication that it intended to exclude persons subject to the Code of Service Discipline from the right to a trial by jury when it conceived that exception. For that reason, I am of the view that the common meaning of the two versions of subsection 11(f) of the Charter is consistent with Parliament’s intent.

[103]  Parliament’s intent may also be determined by the legislative context. In this case, Parliament established a military justice system that includes independent bureaus of prosecution and defence, independent military judges appointed by the Governor in Council until they retire or are dismissed for cause with the support of the House of Commons and the Senate, an independent commission that sets the salaries of military judges, an independent Court Martial Administrator, and appeals to this Court and then to the Supreme Court of Canada. One would wonder why Parliament would establish such a complex system if the goal of the Charter was to exclude the vast majority of offences in the Code of Service Discipline from the jurisdiction of the military justice system.

VII.  Remedy in the case of a violation of the Charter

[104]  In light of the recognized importance of maintaining military discipline and the nature of the offences under paragraph 130(1)(a), I cannot agree with the majority decision to declare the provision of no force or effect without temporarily suspending the effect of that declaration in order to enable Parliament to take the necessary measures to respond to the declaration of unconstitutionality as it sees fit.

VIII.  Conclusion

[105]  To conclude, I consider this Court to be bound by the decisions in Royes and Déry. If I am wrong, I nevertheless find that an offence under paragraph 130(1)(a) of the NDA is an “offence under military law tried before a military tribunal” (“infraction relevant de la justice militaire”) within the meaning of subsection 11(f) of the Charter. Therefore, the offence is included in the exception to the right to a jury trial. Consequently, paragraph 130(1)(a) of the NDA does not violate subsection 11(f) of the Charter, and there are no grounds for a declaration of invalidity. The appeal should be dismissed.

“B. Richard Bell »

ANNEXE A

 

COURT MARTIAL APPEAL COURT OF CANADA

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:	CMAC-588
STYLE OF CAUSE:	CORPORAL R.P. BEAUDRY and HER MAJESTY THE QUEEN

 

PLACE OF HEARING:	Ottawa, Ontario
DATES OF HEARING:	february 23, october 31, 2017 and january 30, 2018
REASONS FOR JUDGMENT BY:	OUELLETTE, J.A.
CONCURRED IN BY:	GAGNÉ, J.A.
DISSenting reasons by:	BELL, C.J.
DATED:	SEPTEMBER 19, 2018

APPEARANCES :

Lieutenant-Commander Mark Létourneau Lientenant-Colonel Jean-Bruno Cloutier	FOR THE APPELLANT
Major Dylan Kerr Captain Patrice Germain	FOR THE RESPONDENT

SOLICITORS OF RECORD :

Defence Counsel Services, Gatineau, Quebec	FOR THE APPELLANT
Canadian Military Prosecution Service Ottawa, Ontario	FOR THE RESPONDENT