Transformation of civil offences into services offences consistent with right to jury

Criminal Law - Charter of Rights and Freedoms - Right to trial by jury [s. 11(f)]

Armed Forces members. Accused persons, members of Armed Forces at relevant time, were charged with service offences under s. 130(1)(a) of National Defence Act (Act). All but one accused unsuccessfully asserted their right to trial by jury under s. 11(f) of Canadian Charter of Rights and Freedoms (Charter) having argued that military exception in s. 11(f) of Charter did not apply. Accused also argued that since s. 130(1)(a) of Act which does not provide for a trial by jury, brought them within military justice system, was inconsistent with their s. 11(f) Charter right. Court Martial Appeal Court dismissed accuseds' appeals in Stillman and Déry but allowed appeal in Beaudry declaring s. 130(1)(a) of Act was of no force or effect in its application to any “serious civil offence” , being maximum sentence of five or more years in prison. Appeals were brought by the accused persons in Stillman and by Crown in Beaudry. Stillman appeal dismissed; Beaudry appeal allowed. Section 130(1)(a) of NDA, which transforms ordinary civil offences into services offences when committed by a person subject to the Code of Service Discipline, is not inconsistent with constitutional right to trial by jury. Declaration that s. 130(1)(a) of Act was of no force or effect was set aside and convictions restored.

R. v. Stillman (2019), 2019 CarswellNat 3542, 2019 CarswellNat 3543, 2019 SCC 40, 2019 CSC 40, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2017), 2017 CarswellNat 2522, 2017 CarswellNat 2523, 2017 CACM 2, 2017 CMAC 2, B. Richard Bell C.J., Guy Cournoyer J.A., and Mary J.L. Gleason J.A. (Can. Ct. Martial App. Ct.). (S.C.C.); reversed (2018), 2018 CarswellNat 5344, 2018 CarswellNat 5345, 2018 CACM 4, 2018 CMAC 4, B. Richard Bell C.J., Gagné J.A., and Ouellette J.A. (Can. Ct. Martial App. Ct.).

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