R v Beaudry: Is Canada’s Military Justice System Unconstitutional?
Later this month the Supreme Court of Canada (“SCC”) will hear a case that will determine “the future of the military justice system in Canada” (Chief Justice Bell in R v Beaudry, 2018 CMAC 4, para 73 [Beaudry]). The case is the federal Crown’s constitutional appeal of the Court Martial Appeal Court’s (“CMAC”) decision in Beaudry. The question before the SCC is simple: whether to strike pivotal provision s 130(1)(a) in the National Defence Act, RSC 1985, c N-5 [NDA] that prevents members of the military from accessing civilian jury trials for serious charges like sexual assault. The impugned provision says that a serving member who is accused of a civilian offence can be tried under military law, even where the offence occurs outside the course of duty. Master Corporal Raphael Beaudry (“Beaudry”), charged with sexual assault, argues that this provision violates his rights under s 11(f) of the Canadian Charter of Rights and Freedoms [Charter], which states that any person charged with an offence has the right:
Except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment. (emphasis added)
CMAC agreed with Beaudry’s interpretation of the exception clause “offence under military law,” finding that “civil offences are not offences under military law” (Beaudry, para 71). The final word will go to the SCC.
Below, I provide some background on Canada’s military justice system and the case before the SCC, before discussing its implications for stare decisis, a stay motion dismissed by the SCC, and the substantive disposition the SCC will likely reach.
Primer on Canadian Military Justice
Canada has a separate system of military justice that runs alongside its civilian system. This parallel—and sometimes concurrent–justice system is not well understood, receiving scant attention in the media and even in law school curricula. Its operative legislation is the NDA, and particularly Part III, the Code of Service Discipline. Courts-martial are formal courts over which independent military judges preside and are designed to deal with serious offences. As military personnel are engaged in risky and often life-threatening operations, military justice emphasizes the need for discipline and group cohesion. The SCC stated in its 1992 decision, R v Généreux,  1 SCR 259 that “Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military” (13).
Essentially, special tribunals are said to be needed to enforce special standards of conduct. However, even though service members are held to high standards of conduct, they do not give up rights under Canadian law, including the Charter. Appeals from the courts-martial of Canada are heard by the CMAC, and appeals from CMAC lie with the SCC.
Jurisdiction and Authority
Military tribunals do not have jurisdiction over certain serious offences such as murder and manslaughter. They do have explicit jurisdiction over things like offences the accused has committed as a prisoner of war (NDA s 76), spying for the enemy (s 78), and mutiny (s 79) (Beaudry, para 54). In 1998, Bill C-25, Statutes of Canada 1998, c 35, modified section 70 of the NDA, adding sexual assault to the list of offences subject to military prosecution in order to address the many sexual crimes alleged to have occurred within the military ranks.
Case Background and the Principle of Stare Decisis
In December 2014, military police charged Beaudry with sexual assault causing bodily harm and overcoming resistance by choking. Beaudry was convicted by the Standing Court Martial of the former charge, an offence found under paragraph 272(1)(c) of the Criminal Code, RSC 1985, c C-46 [Criminal Code] and was sentenced to imprisonment for 42 months and dismissal with disgrace from the Canadian Armed Forces (“CAF”) (R v Beaudry, 2016 CM 4010; Judge Advocate General annual report 2016-2017). Beaudry filed a Notice of Appeal and his appeal on the merits was heard on February 23, 2017.
Similar Cases and the Principle of Stare Decisis
Beaudry is not the first member of the Canadian Forces to challenge the constitutionality of s 130(1)(a) of the NDA. In R v Moriarity, 2015 SCC 55, the accused brought a challenge to this provision under s 7 of the Charter, which the SCC dismissed. In R v Royes, 2016 CMAC 1 [Royes], the CMAC held that the impugned provision did not infringe s 11(f). Shortly thereafter, the CMAC reached the same result in R v Déry, 2017 CMAC 1 [Déry]. In Déry, however, a majority of the three-judge panel would not have reached the same conclusion as the panel in Royes but expressed in obiter that they felt bound by Royes because of stare decisis.
In Beaudry, in sharp juxtaposition, the majority of the CMAC held they were not bound by either Royes or Déry. The CMAC emphasized the fact that intermediate appellate courts are frequently the tribunal of last resort, so the error correction function can sometimes overcome the tradition of following precedent (Beaudry, para 18). It is still interesting that a differently composed CMAC panel reached a different decision in Déry just one year prior. The legal question of stare decisis is mostly moot at this point, given that the SCC has granted leave to appeal in Déry (now called R v Stillman) as well as in the instant case. Nevertheless, the SCC has an opportunity to explicitly clarify how the stare decisis principle should operate.
The CMAC Decision
The CMAC’s judicial panel in Beaudry split 2-1, with the majority decision authored by Justice Ouellette. The decision strikes down the impugned provision—s 130(1)(a) of the NDA—which now has no force or effect “in its application to any civil offence for which the maximum sentence is five years or more” (Beaudry, para 72). This declaration of invalidity thereby significantly limits the jurisdiction of the military justice system, foreclosing its ability to try serious criminal offences. Given the underlying rationale for military justice to promote discipline, the majority reasoned that any limitation on a right must be connected to the “maintenance of discipline, morale and efficiency of the armed forces” (Beaudry, para 49). At the same time, the CMAC queried why individuals who risk their lives to protect Canadian freedoms and legal rights should not “enjoy these same rights” themselves (Beaudry, para 49). The majority found that the provision’s s 11(f) Charter-infringing effect is not justified under s 1 of the Charter. Consequently, Beaudry’s conviction for sexual assault was set aside.
Chief Justice Bell, writing in dissent, would have upheld the constitutionality of the impugned provision. Chief Justice Bell interpreted the military exception in subsection 11(f) of the Charter to be an “expression of Parliament’s confidence” in the court-martial system, including the ability to hold fair trials for civil offences (Beaudry, para 78). In Chief Justice Bell’s mind, s 130(1)(a) is not only Charter-congruent, but also promotes flexibility for prosecutors and has been deemed lawful by the CMAC in recent cases so stare decisis should apply.
SCC Denies Request for a Stay on the Declaration of Invalidity
Ongoing courts-martial have been stalled in the wake of Beaudry pending the decision from the SCC. In January 2019, the SCC heard and denied a motion to stay the declaration of invalidity made by the CMAC. In this stay motion, the Director of Military Prosecutions unsuccessfully argued that they should not have to transfer their approximately 35 cases involving allegations of serious criminal offences—22 of which involve sexual assault allegations—to civilian courts. Meanwhile, military judges have been opting to adjourn trials until after the SCC’s decision on the constitutionality of proceeding in these cases. Prosecutors may soon not have a choice about transferring their caseloads, given that the accused have Charter rights to a speedy trial as per R v Jordan, 2016 SCC 27. While the SCC’s reasons for denying the stay were scant, as is typical, perhaps this decision foreshadows a more substantive agreement with the CMAC in Beaudry.
Analysis and Anticipated Outcome at the SCC
The current international approach towards military tribunals, as noted by United Nations Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, is that “over time, there has been an increasing tendency to curb [their] jurisdiction”. Such trends, while not binding on Canadian courts, have been deemed useful by the SCC “in testing our values against those of comparable jurisdictions” (Justice Arbour in United States v Burns, 2001 SCC 7, para 92). On the question of whether discipline within the Canadian Forces would suffer if the CMAC ruling were upheld, I believe the SCC will have no trouble answering in the negative. Further, the SCC will likely emphasize the importance of not denying the Charter right to a jury trial. The SCC may even reference social science evidence regarding the relative ineffectiveness of courts-martial in regulating and deterring sex crimes in the military.
Such a decision would be in line not only with international trends, but also with more local critiques that the Canadian military is detrimentally excluding itself from civilian society. This critique is particularly trenchant where it comes to sexual assault allegations. Despite what the military has said about its justice system helping to enforce a “zero tolerance” policy concerning sexual misconduct, its investigation and prosecution of military sexual assault crimes continues to receive negative treatment by the media, parliamentary committees, academia, and the Canadian Bar Association. In particular, special studies and reviews undertaken by the Standing Committee on National Defence and the Department of National Defence found that sexual assault in the military is endemic.
One problem is that those accused of sexual crimes are frequently charged with both Criminal Code offences and Code of Service Discipline offences like “Disgraceful Conduct” or “Conduct to the Prejudice of Good Order and Discipline,” allowing many the opportunity to plea to the lesser disciplinary military offence and evade criminal conviction. This may have a negative impact on deterrence as well as the frequency with which sexual misconduct allegations are reported by victims. Retired Justice Marie Deschamps found that at least 70 percent of survivors of sexual assault in the military feel unable to trust the chain of command and the military justice system, fearing career and reputational blowback from reporting their experiences of abuse.
Rather than simply uphold the CMAC’s decision, the SCC could perhaps mandate that courts-martial provide the option of a jury. This jury could be composed of peers in the military, or civilians, or both. This would be a structural innovation that would make Canada an international leader  While it would likely be effective at addressing the Charter problem, this “solution” would not address other fundamental issues. Arguably, military tribunals are encroaching on the constitutionally valid jurisdiction of superior courts. Besides a division of powers argument, courts-martial prosecutors may lack the independence needed to give victims of sexual assault enough confidence to come forward. A more desirable solution is to remove the jurisdiction to prosecute serious civilian crimes from the NDA and return it back to provincial courts, ending the largely failed experiment that began in 1998.
The Latin motto of the CMAC, Nulli Negabimus Justitiam, translates to “we will deny justice to no one.” The CMAC’s landmark Beaudry ruling breathes fresh life into these dusty Latin words. The ball is now in the SCC’s “court.” Soldiers, sailors, and aircrew will soon, one hopes, be able to access a jury trial for allegations of serious crimes as a constitutional right, but what the future of military justice will look like beyond this is still an open question.
 Lee Berthiaume, “Court ruling raises questions about future of Canada’s military justice system” (September 28, 2018), Globe and Mail, online: <https://www.theglobeandmail.com/canada/article-bombshell-court-ruling-raises-questions-about-future-of-canadas/>.
 Canadian Forces, “An Overview of Canada’s Military Justice System,” online: <http://www.forces.gc.ca/assets/FORCES_Internet/docs/en/jag/military-justice-overview.pdf>.
 UN GA, Report of the Special Rapporteur on the Independence of Judges and Lawyers, UN GA A/68/285 (7 August 2013), at para 20.
 Colonel-Maitre Michel W Drapeau, “Sexual Assaults in the Canadian Military: Is the Military Making Headway?” (April 30, 2018), submitted to the National Security and Defence Committee, Senate of Canada, online: <http://mdlo.ca/wp-content/uploads/2018/04/April-30-2018-Is-the-Cnd-Military-making-headway-002.pdf>.
 Michael Drapeau Law Office, “The Canadian military should be stripped of jurisdiction to deal with sexual assaults; a criminal offence” (4 May 2015), online: <https://mdlo.ca/canadian-armed-forces/the-canadian-military-should-be-stripped-of-jurisdiction-to-deal-with-sexual-assaults-a-criminal-offence/>.
 Cristin Schmitz, “CMAC strikes down key provision of National Defence Act for violating military members’ Charter right to jury trial” (20 September 2018), The Lawyer’s Daily, online: <https://www.thelawyersdaily.ca/articles/7379>.