The supreme Court of Canada refused on Monday to temporarily suspend a court decision in a case of sexual assault, which concluded that the military justice system is “unconstitutional”.
The Court martial appeal court of Canada came to this conclusion last September, because the members of the armed Forces tried by military courts for serious crimes, including sexual assault and murder, are not allowed to undergo a jury trial.
A military prosecutor demanded on Monday the country’s highest court to suspend this decision, the time to hear the appeal on the merits, because the judgment will affect discipline within the Forces.
The ministry of Defence supports that of 35 cases, including 21 for sexual abuse – are currently in limbo court following the decision of the Court of appeal.
The defense argued that the military prosecutors had presented no evidence to support their fears, and that the maintenance of the decision for the benefit of both victims and military personnel accused of serious crimes.
In the name of four of his colleagues on the supreme Court, judge Clement Gascon has immediately made a decision at the hearing on Monday, refusing to suspend the decision of the Court of appeal. The supreme Court should hear the merits of the case in march next year.
The Charter of rights
The case dates back to December 2014, when the military police has charged a soldier based in Edmonton, the corporal Raphael Beaudry, of one count of sexual assault causing bodily harm.
The Charter of rights and freedoms stipulates that any person accused of a crime that is punishable by a maximum sentence of five years or more may request a jury trial, “unless it is an offence under military justice”. However, a special provision of the national defence Act provides that if a member is accused in the civil life of a criminal offence, such as sexual assault or murder, the matter may be dealt with under military law, even if the offence alleged has no connection with the military service of the accused.
When Mr. Beaudry has asked that his case be heard before a jury, his motion was rejected and he was convicted by court-martial.
But the Court martial appeal court ruled in September that the offences committed by military personnel in civilian life are not, therefore, offences under the military law: Mr. Beaudry and the other persons charged with serious offences under the criminal Code should therefore be allowed to undergo a jury trial, as guaranteed by the Charter.
Mr. Beaudry is far from being the first to challenge the constitutionality of the military justice system, but the earlier cases had all been rejected by the lower courts.