The military members don’t have a right to be tried by a jury even in serious civil offenses.
Introduction of the National Defence Act, 1950 (NDA) made the military justice system a separate civilian justice system. This act provides that if any military member commits any act that is punishable under Part VII of the criminal code or any other act of Parliament, then such crime shall be considered as “service offence.”
Section 11(f) of the Canadian charter of rights and freedom provides that any person who is tried in a case where the maximum punishment is imprisonment of 5 or more years shall be tried by jury except in the case of an offence under military law. Offences under military law must be tried before a military tribunal.
The primary issue in the present case – Whether s. 130(1) (a) of the NDA is inconsistent with s. 11 (f) of the Charter. This evolved the question of whether a severe civil offence is a service offence under s.130 (1)(a) and therefore if exception under s.11(f) apply?
In the present case, the appellants were each a member of the Armed Forces and were charged with one or more service offences under s. 130 (1)(a) of NDA. Before various standing courts-martial, one of the accused persons claimed his right to be tried by a jury. The accused claimed that section 130 (1)(a) of NDA is inconsistent with the right given under s.11 of the charter. The appeals to the Court Martial Appeal Court led to two contradictory judgments:
1. The first judgment was a judgment in the accused persons appeal in R. v. Déry, 2017 CMAC 2, 391 C.R.R. (2d) 156 (“Stillman”). The court held that s.130(1)(a) does not contradict s.11 of the charter. It is because serious civil offences are included as the military offence.
2. The second appeal in R. v. Beaudry, 2018 CMAC 4, 430 D.L.R. (4th) 557, was allowed. It held that the two sections are inconsistent with each other, and the civil offence would not come under the scope of military law offences.
In the present case, the SC stated that civil crime during military service should be considered as military law offences even though they might not strictly be related to military laws. The crime done in civil capacity calls into question the person’s capacity to obey military discipline, efficiency and morale in the military environment and respect military authorities.
The majority of the bench further reasoned why ‘military nexus’ doctrine should not be restored. By providing that military nexus would go beyond the accused military status, it held that when an offence under 130(1)(a) is tried before a military tribunal, the military exception is invoked given under s.11 of the charter. The court also held that the charter and NDA are not inconsistent with each other as s.11 provides a jury for every person who is lawfully entitled to it.
The court dismissed the order of Stillman and allowed the appeal in Beaudry. The order of the Court Martial Appeal Court is allowed, and the conviction was restored. Further, it was clarified that the NDA would be effective in serious civil offences.