On July 26, 2019, in R. v. Stillman, 2019 SCC 40,the Supreme Court of Canada held by a 5-2 majority that a member of the Canadian Forces does not have the right to trial by jury for a “civilian” criminal offence for which they are charged under the National Defence Act (the “NDA”). Section 130(1)(a) of the NDA converts any offence in the Criminal Code or another federal statute into a military offence triable before a military tribunal. Section 11(f) of the Charter of Rights and Freedoms, meanwhile, provides that:
Any person charged with an offence has the right…
(f) 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[.]
The question before the Court, in Stillman, was whether the mere inclusion of a “civilian” offence within the ambit of s. 130(1)(a) of the NDA is enough to trigger the military offences exception in s. 11(f) of the Charter. The appellants – and the respondent in the companion appeal, Beaudry v. R., 2018 CMAC 4 – argued that only “special standards of military discipline”, to which ordinary citizens are not subject, constitute “military law.” Thus, the Stillman appellants and Beaudry respondent submitted, an offence under s. 130(1)(a) of the NDA cannot be a “military offence” for the purpose of the exception in s. 11(f) of the Charter merely by virtue of its inclusion in the NDA. Since s. 130(1)(a) permits insufficiently military offences to be tried before military courts in which the accused cannot elect trial by jury, the appellants argued that the provision infringes s. 11(f).
Following the hearing before the Court – at which ARL made submissions as an intervener – ARL’s founder and co-counsel, Asher Honickman, reflected on the merits of the case. You can read his blog post here.
Silence on stare decisis
ARL’s submissions concerned the issue of horizontal stare decisis. You can read our factum here. The issue arose in Stillman and Beaudry because of how the Court Martial Appeal Court (the “CMAC”) decided the two cases.
In Stillman — reported as R. v. Déry, 2017 CMAC 2 — a three-judge panel of the CMAC held that it was bound to follow the CMAC’s prior judgment in R. v. Royes, 2016 CMAC 1, in which another three-judge panel had held s. 130(1)(a) to be constitutional. Two of the three members of the Stillman panel, however, engaged in lengthy obiter questioning Royes’ correctness. On the basis of that obiter, as well as of the Supreme Court of Canada’s having granted leave to appeal in Stillman, a different three-judge panel of the CMAC, in Beaudry, held that Royes was no longer binding. A majority of the Beaudry panel struck down s. 130(1)(a) as unconstitutional.
On appeal to the Supreme Court of Canada, ARL argued that the CMAC’s inconsistent approach to its own binding precedent reflects broader inconsistency in how intermediate appellate courts across Canada apply horizontal stare decisis in their own jurisprudence. This, ARL submitted, warranted the Court’s authoritative guidance. It is a problem for the rule of law that, in Stillman and Beaudry, the same appellate court applied the same law to two different sets of litigants in two contradictory ways.
Unfortunately, the Court did not comment on horizontal stare decisis in its judgment in Stillman. Worse, the majority described, without criticism, the CMAC’s approach to precedent in Beaudry (at para. 16). It will be deeply problematic if lower courts read the Court’s lack of criticism as tacit endorsement.
This is an important issue – even if, as Stillman illustrates, it is easily overlooked. ARL will continue to advocate for a clear and consistent approach to horizontal stare decisis across Canada. The rule of law demands no less.
Purposivism returns to constitutional interpretation
Stillman does offer cause for optimism, however. In dismissing the appeal, the majority (speaking through Justices Moldaver and Brown) took a noteworthy approach to the task of interpreting s. 11(f) of the Charter. Forgoing any hint the “living tree” metaphor, and noting that “it is important not to overshoot the actual purpose of the right or freedom in question” (at para. 21) — and thus also “not to ‘undershoot’ the purpose of a Charter exception by giving it an unduly narrow interpretation” (at para. 22) — the majority was admirably rigorous in its purposive analysis, constructing the military exception to s. 11(f) against a detailed historical backdrop.
The majority first discussed at length the evolution of the military justice system over Canada’s history. The system “has evolved from a command-centric disciplinary model that provided weak procedural safeguards, to a parallel system of justice that largely mirrors the civilian criminal justice system” (at para. 53). The majority noted that the military system has always been separate from the civilian justice system. This separation exists due to the “unique needs of the military with respect to discipline, efficiency and morale of the military” (at para. 36).
The historical development of the military justice system in Canada, and the current context in which it operates, informed the majority’s interpretation of the “offence under military law” exception in s. 11(f) of the Charter. The majority noted that, in the parliamentary debates preceding the Charter’s enactment, the Minister of Justice emphasized that““[j]ury trials in cases under military law before a military tribunal have never existed either under Canadian or American law” (at para. 77). Hence, the majority concluded, at para. 78:
In our view, in light of “the historical origins of the concepts enshrined” and “the language chosen to articulate the specific right or freedom” ([R. v. Big M Drug Mart Ltd.,  1 S.C.R. 295], at p. 344) , it is doubtful that s. 11(f) reversed this longstanding state of affairs. Instead, it is far more likely that the purpose of the military exception was to recognize and preserve the status quo.
The majority therefore held that the military exception’s purpose was to “recognize and affirm the existence of a separate military justice system tailored to the unique needs of the military, and to preserve the historical reality that jury trials in cases governed by military law have never existed in Canada” (at para. 80).
The majority rejected two contrary interpretations of the exception in s. 11(f). The first was that the “offences under military law” to which the exception applies ought to be limited to those offences listed under ss. 73 to 129 of the NDA. These offences are, in the majority’s words in Beaudry, “special standards of military discipline” (Beaudry at para. 82), as opposed to the offences under s. 130(1)(a), which are ordinary civil offences. The Supreme Court of Canada majority concluded that the text of s. 11(f) simply did not support this interpretation; the words “under military law” too broad to be so contained.
The second rejected interpretation of the exception in s. 11(f) was that the words “offence under military law” required a “military nexus.” On this view, an accused could be constitutionally denied their right to trial by jury only if the offence with which they are charged is connected to military service. The majority followed the Court’s 2015 judgment in R. v. Moriarity, 2015 SCC 55, and held that the military status of the accused was the only military connection required to trigger the exception (at para. 92). It reasoned that “[t]his conclusion stems from the unique wording, context, and purpose of the military exception to s. 11(f)” (at para. 97).
Justices Karakatsanis and Rowe dissented on the “military nexus” issue. They argued that there must be a connection between the military and the circumstances of the offence for the exception to the right to a jury trial to apply. In doing so, the dissenters, like the majority, relied on a purposive analysis — in their words, “by looking to the purpose of the right, the character and the larger objectives of the Charter, the wording chosen to articulate the right, and the historical origins of the concepts enshrined” (at para. 176).
As the dissenting reasons in Stillman – and Asher’s blog post, here – make clear, interpretative arguments grounded in purposive analysis can be marshalled on either side of the “military nexus” question. What is notable is that the Court took them up to the extent that it did. For those of us who seek greater methodological discipline in constitutional interpretation, Stillman is a positive step, indeed.
The Court’s judgment in Stillman illustrates the promise of purposivism in constitutional interpretation. The prosecution prevailed not on the basis of the “living tree” reasoning or even, primarily, because of policy arguments in favour of a broad reading of the military exception in s. 11(f) of the Charter. Rather, the appeal turned on carefully marshalled authorities on the history of military justice and the purpose of s. 11(f). Whether this strategy will succeed in other contexts in which courts are asked to discern the contours of constitutional protections remains to be seen. It should.
Adam Goldenberg is a litigator at McCarthy Tétrault LLP. He representing Advocates for the Rule of Law before the Supreme Court of Canada in Stillman and Beaudry.
Pierre-Gabriel Gregoire is a BCL/LLB candidate at McGill and was a summer student at McCarthy Tétrault LLP in 2019.
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