Supreme Court rejects bid to block court ruling that left dozens of military prosecutions in limbo

January 15, 2019

A handful of serious criminal cases — now tied up in the military justice system over questions of constitutionality — likely will be put before a civilian judge after Canada's top court has dismissed an attempt to temporarily stay the effects of a case that has hobbled the courts-martial system.

The Supreme Court of Canada on Monday rejected a motion by the director of military prosecutions to order a stay on the effects of the appeals court ruling involving Master-Cpl. Raphael Beaudry, who was charged with sexual assault but denied a jury trial back in September.

The appeals court ruled in Beaudry's case that the inability of soldiers, sailors and aircrew to elect trial by jury for serious crimes (those punishable by five years or more in prison) amounts to a violation of the Charter of Rights and Freedoms.

The effect on the military justice system has been profound. National Defence says 35 cases have been called into question by the Beaudry ruling.

Most of the cases currently in doubt — 22 — involve sexual assault charges.

Only five courts martial are scheduled to proceed. A dozen are waiting in the wings with no trial date, while another 15 are in limbo.

"We really have an obligation to reassess the cases that we have ongoing and determine whether it would be better for things to be dealt with downtown," said Col. Bruce MacGregor, the director of military prosecutions.

He was unable to say how many cases would be transferred to civilian court, a move MacGregor has resisted in the past because it means the military loses control over how, when — or even if — they're prosecuted.

The military prosecution branch has appealed the so-called Beaudry decision. The Supreme Court won't hear the case until March, however — and military prosecutors wanted to remove the uncertainty by asking that the ruling's effects be suspended.

MacGregor said he respects the court's ruling and will have to deal with the repercussions.

"I'm disappointed because I believe we had a very important position to put forward," he said.

Read more: Supreme Court rejects bid to block court ruling that left dozens of military prosecutions in limbo