In a legal earthquake for the military justice system, the Court Martial Appeal Court of Canada (CMAC) has split 2-1 to strike down s. 130(1)(a) of the National Defence Act (NDA) because the majority held that the provision — which deems Criminal Code offences committed in Canada by military members to be “service offences” — deprives military accused of their Charter s. 11(f) right to trial by jury.
The Sept. 19 majority decision by CMAC Justices Jocelyne Gagne and Vital Ouellette (Chief Justice Richard Bell dissented) ruled that to deprive a military accused of a trial by jury for offences punishable by more than five years in prison, and that were committed within Canada, is not justified under s. 1 of the Charter as a reasonable and demonstrably justified limit in a free and democratic society: R. v. Beaudry 2018 CMAC 4.
The Lawyers Daily (Canada).
However, the Supreme Court of Canada is set to have the final word on the far-reaching issue, because it was awaiting Beaudry’s outcome before scheduling a hearing on R. v. Stillman and several other appeals which raise the same issue. Those appeals could be heard as early as the top court’s spring session in 2019.