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Supreme Court to hear case on constitutionality of military justice system


OTTAWA — The Supreme Court of Canada has agreed to hear a case that challenges the constitutionality of the military court martial system and, if successful, could have dramatic ramifications for the Canadian Forces.

The case was brought by Master Cpl. Clarence Stillman and eight other current and former Forces members who say their rights were infringed because, under the military system, they were not entitled to have their cases heard by a jury.

The Court Martials Appeal Court of Canada rejected the challenge against the court-martial system last year, after which Stillman and the others asked the Supreme Court to hear the case.

A positive finding by the Supreme Court would represent a blow to the existing court-martial system and force officials — and the federal government — to rethink how they prosecute criminal cases in the military.

The Constitution says anyone charged with an offence with a maximum penalty of five or more years in prison is entitled to a jury trial  "except in the case of an offence under military law tried before a military tribunal."

Those military tribunals come in the form of courts martial, of which there are two types. A standing court martial is heard by a military judge alone, while a general court martial involves a judge and a panel of five other service members.

Military personnel charged with a serious crime are usually given the choice between the two types and are forced in some instances to have their cases heard by a general court martial.

But Stillman and the others are challenging the exception from jury trials for military personnel, which is laid out in section 11(f) of the Charter of Rights and Freedoms.

Among their arguments is that a general court martial is not the same as a jury trial because it includes fewer members and those members are often higher in rank than the accused and part of the chain of command.

They also argue that military personnel charged with a Criminal Code offence, even if it is under National Defence Act, should be treated the same as anyone else — namely by giving military personnel the option of a jury.

The National Defence Act allows for any criminal offence committed by a service member to be considered a military offence, which has been interpreted to this point as making them subject to the court-martial system.

"Our argument is very simple: A civilian offence is not an offence under military law according to section 11(f)," said Lt.-Cmdr. Mark Letourneau, one of the two military lawyers representing Stillman and the other appellants.

"So right now the situation is that soldiers, members of the military, who are charged ... for a civilian offence, really, are being deprived of the right to jury for no reason."

A military supply technician, Stillman was found guilty and sentenced by a standing court martial in October 2013 to six years in prison and dismissal from the Forces after a service member was shot at a residence in CFB Shilo, Man.

A date for the Supreme Court to hear the case has yet to be set.

Lee Berthiaume, The Canadian Press

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