{"id":3223,"date":"2019-08-19T22:44:41","date_gmt":"2019-08-19T22:44:41","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=3223"},"modified":"2019-08-20T14:16:57","modified_gmt":"2019-08-20T14:16:57","slug":"r-v-stillman-a-missed-opportunity-for-guidance-on-stare-decisis","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/r-v-stillman-a-missed-opportunity-for-guidance-on-stare-decisis\/","title":{"rendered":"R. v. Stillman: A Missed Opportunity for Guidance on Stare Decisis"},"content":{"rendered":"\n

On July 26, 2019, in R. v.\nStillman<\/em>, 2019 SCC 40,the\nSupreme Court of Canada held by a 5-2 majority that a member of the Canadian\nForces does not have the right to trial by jury for a \u201ccivilian\u201d criminal\noffence for which they are charged under the National Defence Act <\/em>(the \u201cNDA<\/em><\/strong>\u201d). Section 130(1)(a) of the NDA <\/em>converts any offence in the Criminal Code <\/em>or another federal statute\ninto a military offence triable before a military tribunal. Section 11(f<\/em>) of the Charter of Rights and Freedoms<\/em>, meanwhile, provides that: <\/p>\n\n\n\n

Any person charged with an offence has the right\u2026<\/p>

(f<\/em>) 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[.]<\/blockquote>\n\n\n\n

The question before the Court, in Stillman<\/em>,\nwas whether the mere inclusion of a \u201ccivilian\u201d offence within the ambit of s.\n130(1)(a) of the NDA <\/em>is enough to\ntrigger the military offences exception in s. 11(f<\/em>) of the Charter<\/em>. The\nappellants \u2013 and the respondent in the companion appeal, Beaudry v. R.<\/em>, 2018 CMAC 4 \u2013 argued that only \u201cspecial standards of\nmilitary discipline\u201d, to which ordinary citizens are not subject, constitute\n\u201cmilitary law.\u201d Thus, the Stillman <\/em>appellants\nand Beaudry<\/em> respondent submitted, an\noffence under s. 130(1)(a) of the NDA <\/em>cannot\nbe a \u201cmilitary offence\u201d for the purpose of the exception in s. 11(f<\/em>) of the Charter <\/em>merely by virtue of its inclusion in the NDA<\/em>. Since s. 130(1)(a) permits\ninsufficiently military offences to be tried before military courts in which\nthe accused cannot elect trial by jury, the appellants argued that the\nprovision infringes s. 11(f<\/em>).<\/p>\n\n\n\n

Following the hearing before the Court \u2013 at which ARL made submissions\nas an intervener \u2013 ARL\u2019s founder and co-counsel, Asher Honickman, reflected on\nthe merits of the case. You can read his blog post here. <\/p>\n\n\n\n

Silence\non stare decisis<\/em><\/h4>\n\n\n\n

ARL\u2019s\nsubmissions concerned the issue of horizontal stare decisis<\/em>. You can read our factum here. The issue arose in Stillman <\/em>and Beaudry <\/em>because of how the Court Martial Appeal Court (the \u201cCMAC<\/strong>\u201d) decided the two cases.<\/p>\n\n\n\n

In Stillman <\/em>\u2014 reported as R. v. D\u00e9ry<\/em>, 2017 CMAC 2 \u2014 a three-judge\npanel of the CMAC held that it was bound to follow the CMAC\u2019s prior judgment in\nR. v. Royes<\/em>, 2016 CMAC 1, in which\nanother three-judge panel had held s. 130(1)(a) to be constitutional. Two of\nthe three members of the Stillman <\/em>panel,\nhowever, engaged in lengthy obiter<\/em>\nquestioning Royes<\/em>\u2019 correctness. On\nthe basis of that obiter<\/em>, as well as\nof the Supreme Court of Canada\u2019s having granted leave to appeal in Stillman<\/em>, a different three-judge panel\nof the CMAC, in Beaudry<\/em>, held that Royes <\/em>was no longer binding. A majority\nof the Beaudry <\/em>panel struck down s.\n130(1)(a) as unconstitutional.<\/p>\n\n\n\n

On appeal to\nthe Supreme Court of Canada, ARL argued that the CMAC\u2019s inconsistent approach\nto its own binding precedent reflects broader inconsistency in how intermediate\nappellate courts across Canada apply horizontal stare decisis <\/em>in their own jurisprudence. This, ARL submitted,\nwarranted the Court\u2019s authoritative guidance. It is a problem for the rule of\nlaw that, in Stillman <\/em>and Beaudry<\/em>, the same appellate court\napplied the same law to two different sets of litigants in two contradictory\nways. <\/p>\n\n\n\n

Unfortunately,\nthe Court did not comment on horizontal stare\ndecisis<\/em> in its judgment in Stillman<\/em>.\nWorse, the majority described, without criticism, the CMAC\u2019s approach to\nprecedent in Beaudry <\/em>(at para. 16).\nIt will be deeply problematic if lower courts read the Court\u2019s lack of\ncriticism as tacit endorsement.<\/p>\n\n\n\n

This is an\nimportant issue \u2013 even if, as Stillman <\/em>illustrates,\nit is easily overlooked. ARL will continue to advocate for a clear and\nconsistent approach to horizontal stare\ndecisis <\/em>across Canada. The rule of law demands no less.<\/p>\n\n\n\n

Purposivism\nreturns to constitutional interpretation<\/h4>\n\n\n\n

Stillman <\/em>does offer cause for optimism,\nhowever. In dismissing the appeal, the majority (speaking through Justices\nMoldaver and Brown) took a noteworthy approach to the task of interpreting s.\n11(f<\/em>) of the Charter.<\/em> Forgoing any hint the \u201cliving tree\u201d metaphor, and noting\nthat \u201cit is important not to overshoot the actual purpose of the right or\nfreedom in question\u201d (at para. 21) \u2014 and thus also \u201cnot to \u2018undershoot\u2019 the\npurpose of a Charter exception by giving it an unduly narrow interpretation\u201d\n(at para. 22) \u2014 the majority was admirably rigorous in its purposive analysis,\nconstructing the military exception to s. 11(f<\/em>)  against a detailed\nhistorical backdrop. <\/p>\n\n\n\n

The majority first discussed at length the evolution of the military\njustice system over Canada\u2019s history. The system \u201chas evolved from a\ncommand-centric disciplinary model that provided weak procedural safeguards, to\na parallel system of justice that largely mirrors the civilian criminal justice\nsystem\u201d (at para. 53). The majority noted that the military system has always\nbeen separate from the civilian justice system. This separation exists due to\nthe \u201cunique needs of the military with respect to discipline, efficiency and\nmorale of the military\u201d (at para. 36).<\/p>\n\n\n\n

The historical development of the military justice system in Canada, and\nthe current context in which it operates, informed the majority\u2019s\ninterpretation of the \u201coffence under military law\u201d exception in s. 11(f<\/em>) of the Charter<\/em>. The majority noted that, in the parliamentary debates\npreceding the Charter<\/em>\u2019s enactment, the\nMinister of Justice emphasized that\u201c\u201c[j]ury trials in cases under military law\nbefore a military tribunal have never existed either under Canadian or American\nlaw\u201d (at para. 77). Hence, the majority concluded, at para. 78:<\/p>\n\n\n\n

In our view, in light of \u201cthe historical origins of the concepts enshrined\u201d and \u201cthe language chosen to articulate the specific right or freedom\u201d ([R. v. Big M Drug Mart Ltd.<\/em>, [1985] 1 S.C.R. 295], at p. 344) , it is doubtful that s. 11(f<\/em>) 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<\/em>.<\/p><\/blockquote>\n\n\n\n

The majority therefore held that the military exception\u2019s purpose was to\n\u201crecognize and affirm the existence of a separate military justice system\ntailored to the unique needs of the military, and to preserve the historical\nreality that jury trials in cases governed by military law have never existed\nin Canada\u201d (at para. 80). <\/p>\n\n\n\n

The majority rejected two contrary interpretations of the exception in\ns. 11(f<\/em>). The first was that the\n\u201coffences under military law\u201d to which the exception applies ought to be\nlimited to those offences listed under ss. 73 to 129 of the NDA.<\/em> These offences are, in the\nmajority\u2019s words in Beaudry<\/em>, \u201cspecial\nstandards of military discipline\u201d (Beaudry\n<\/em>at para. 82), as opposed to the offences under s. 130(1)(a), which are\nordinary civil offences. The Supreme Court of Canada majority concluded that\nthe text of s. 11(f<\/em>) simply did not\nsupport this interpretation; the words \u201cunder military law\u201d too broad to be so\ncontained. <\/p>\n\n\n\n

The second rejected interpretation of the exception in s. 11(f<\/em>) was that the words \u201coffence under\nmilitary law\u201d required a \u201cmilitary nexus.\u201d On this view, an accused could be\nconstitutionally denied their right to trial by jury only if the offence with\nwhich they are charged is connected to military service. The majority followed\nthe Court\u2019s 2015 judgment in R. v.\nMoriarity<\/em>, 2015 SCC 55, and held that the military status of the accused\nwas the only military connection required to trigger the exception (at para.\n92). It reasoned that \u201c[t]his conclusion stems from the unique wording,\ncontext, and purpose of the military exception to s. 11(f<\/em>)\u201d (at para. 97). <\/p>\n\n\n\n

Justices Karakatsanis and Rowe dissented on the \u201cmilitary nexus\u201d issue.\nThey argued that there must be a connection between the military and the\ncircumstances of the offence for the exception to the right to a jury trial to\napply. In doing so, the dissenters, like the majority, relied on a purposive\nanalysis \u2014 in their words, \u201cby looking to the purpose of the right, the\ncharacter and the larger objectives of the Charter<\/em>,\nthe wording chosen to articulate the right, and the historical origins of the\nconcepts enshrined\u201d (at para. 176). <\/p>\n\n\n\n

As the dissenting reasons in Stillman <\/em>\u2013 and Asher\u2019s blog post, here <\/a>\u2013 make clear, interpretative arguments grounded in purposive analysis can be marshalled on either side of the \u201cmilitary nexus\u201d 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 <\/em>is a positive step, indeed.<\/p>\n\n\n\n

The Court\u2019s judgment in Stillman <\/em>illustrates the promise of\npurposivism in constitutional interpretation. The prosecution prevailed not on\nthe basis of the \u201cliving tree\u201d reasoning or even, primarily, because of policy\narguments in favour of a broad reading of the military exception in s. 11(f<\/em>) of the Charter<\/em>. Rather, the appeal turned on carefully marshalled\nauthorities on the history of military justice and the purpose of s. 11(f<\/em>). Whether this strategy will succeed\nin other contexts in which courts are asked to discern the contours of\nconstitutional protections remains to be seen. It should.<\/p>\n\n\n\n

Adam Goldenberg<\/em><\/strong> is a litigator at McCarthy T\u00e9trault LLP. He representing Advocates for the Rule of Law before the Supreme Court of Canada in Stillman and Beaudry. <\/em><\/p>\n\n\n\n

Pierre-Gabriel Gregoire <\/strong>is a BCL\/LLB candidate at McGill and was a summer student at McCarthy T\u00e9trault LLP in 2019. <\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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 \u201ccivilian\u201d criminal offence for which they are charged under the National Defence Act (the \u201cNDA\u201d). Section 130(1)(a) …<\/p>\n","protected":false},"author":10144,"featured_media":3227,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[35,34],"tags":[107,255,508,509,522,492,521,71],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3223"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/10144"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=3223"}],"version-history":[{"count":3,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3223\/revisions"}],"predecessor-version":[{"id":3228,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3223\/revisions\/3228"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/3227"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=3223"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=3223"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=3223"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}