Author: Tal Schreier

Trial by military: Spotlight on R v Beaudry

Posted on by Tal Schreier

by Teodora Pasca

Years ago, Corporal R. P. Beaudry was charged with sexual assault causing bodily harm, an offence under s 272 of the Criminal Code carrying a maximum penalty of 14 years’ imprisonment. Beaudry, a member of the Canadian Armed Forces, requested a jury trial. And because he was a member of the Forces, his request was denied.   

Until recently, criminal offences committed by military officials were understood to fall under the enumerated exception in s 11(f) of the Charter, which provides that any accused person has the right to trial by jury, “except in the case of an offence under military law tried before a military tribunal.”  But in September of 2018, the Court Martial Appeal Court of Canada (“CMAC”) held that trying Beaudry’s case by court-martial was unconstitutional under s 11(f) of the Charter, because it denied him the right to a jury trial for a serious Criminal Code offence that is not an offence “under military law.”  

The Beaudry decision effectively froze the Forces’ ability to prosecute serious criminal offences within the bounds of their own justice system and threw dozens of ongoing military prosecutions into a state of uncertainty.  

On March 26, 2019, the Supreme Court of Canada (SCC) is scheduled to hear a Crown appeal from CMAC’s decision. The SCC’s decision on the constitutionality of military prosecutions for serious crimes will have significant ramifications for how military officials are prosecuted going forward.  

Background and the CMAC decision 

Beaudry, and all other members of the Forces accused of criminal offences, are subject to s 130 of the National Defence Act (“NDA”), which is contained within the statute’s Code of Service Discipline. Section 130(1)(a) classifies nearly all offences under the Criminal Code and any other Act of Parliament as “service offences,” bringing them within the jurisdiction of military courts.   

Before the CMAC ruling in Beaudry, the NDA authorized courts-martial to try all service offences committed by members of the Forces (except murder, manslaughter, and offences related to child abduction). Accordingly, s 130 of the NDA ropes nearly all criminal offences committed by military officials into a system of justice completely separate from civilian courts.

In a 2-1 decision, CMAC held that s 130(1)(a) violated s 11(f) and could not be justified under s 1 of the Charter. CMAC held that “service offences” under s 130(1)(a), including Criminal Code offences, are not equivalent to “offences under military law” referred to in the exception in s 11(f) — which refers not to general crimes like sexual assault, but rather to offences that specifically violate military order. Furthermore, while military prosecutions may align with the objective of maintaining discipline and order within the Forces, that objective does not justify denying members of the Forces the right to trial by jury.  At para 49, a majority of the court stated that “it would be ironic for those who have the ultimate responsibility of protecting freedom, justice and social equality, at the risk of their lives, to not enjoy these same rights.”  

Issues before the SCC 

The immediate effect of the CMAC ruling was to disrupt three ongoing sexual assault prosecutions within the military justice system. Officials warned that its further effect would be to toss 40 serious criminal cases — including 22 alleged sexual assaults — to already over–burdened civilian courts, eliminating the Canadian Forces’ ability to ensure that those offences were prosecuted.  

But in January 2019, the SCC denied an application to stay CMAC’s declaration of invalidity, leaving the Forces unable to prosecute offences attracting the right to trial by jury until the SCC’s final ruling on the matter in March.   

The SCC’s decision in Beaudry will chart a course for the future of military prosecutions of serious crimes. The Court will need to consider the scope of the exception to trial by jury for offences “under military law” in s 11(f), as well as whether any infringements can be justified in light of the military justice system’s long-term goals.  

The Court will also likely engage with concerns about “horizontal stare decisis,” which informs when appellate courts may depart from their own decisions. Prior to its ruling in Beaudry, CMAC previously found no infringement of s 11(f) on the same provisions of the NDA in R v Royes, and subsequently in R v Déry. Yet apprehension from the court Déry, albeit in obiter, led CMAC in Beaudry to conclude that the law on this issue remained uncertain.  

Advocates for the Rule of Law, interveners on the SCC appeal, argue that adherence to precedent is a key part of the rule of law, a fundamental constitutional principle. The SCC has previously dismissed a challenge to s 130(1)(a) of the NDA under s 7 of the Charter, but has not yet ruled on the provision’s constitutionality in the context of the right to a jury.  

Significance of the Beaudry case 

By virtue of its controversial nature, the Beaudry case has made national headlines and thereby increased public exposure to the military justice system. The SCC’s incoming decision on this matter may push us to consider the utility of having a separate system of prosecution for military officials at all.  

On one hand, members of the Canadian Forces risk their lives for members of the Canadian public, and their constant exposure to dangerous situations amplifies the need for group discipline and cohesion. One might consider internal prosecution of acts of disobedience, including of criminal acts, to be one manner of achieving that objective.  

The SCC itself has previously drawn this conclusion in R v Généreux, where it held that “recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military.”  

At the same time, Beaudry illustrates the injustice underlying the separation of these two systems. If members of the Canadian Forces are not entitled to trial by jury for serious offences, the exception in s 11(f) creates a two-tiered system of justice. Barring access to jury trials seems arbitrary if the accused is not charged with an offence against military order — essentially, it denies the accused a right based on their occupation, regardless of whether their charges are related to their service.   

Finally, it is worth considering the particular impact the Beaudry decision may have on prosecutions of sexual offences, many of which carry serious penalties under the Criminal Code. The Canadian Forces have previously come under fire for failing to properly respond to sexual assault and harassment. The NDA has enabled the Forces to prosecute sexual offences by court-martial for over 20 years. An inability to prosecute these crimes in military court because of s 11(f), if that is what the SCC decides, will hopefully put pressure on the military to respond using other disciplinary mechanisms and implement proactive measures that will spur change on an institutional level.  

Teodora Pasca is a 1L JD Candidate at the Faculty of Law 

Recapping YY Chen’s Constitutional Roundtable on Citizenship and the Charter

Posted on by Tal Schreier

by Michelle Huang and Jeffrey Wang

On Thursday, February 28, the Asper Centre hosted Professor Y. Y. Brandon Chen for a Constitutional Roundtable titled “Toward a Substantive Understanding of Citizenship in the Canadian Charter of Rights and Freedoms”. Chen is a lawyer and social worker by training, and is completing his SJD at UTLaw. He is currently an Assistant Professor at the University of Ottawa’s Faculty of Law, focusing his research on public law, health, and migration. Chen was also an Asper Centre clinic student in 2009 while a pursuing his JD at UTLaw.

For the Roundtable, Professor Chen presented an argument for a more inclusive judicial definition of Canadian citizenship within the Charter. The first part of his presentation focused on the three sections of the Charter that explicitly limit rights to citizenship – sections 3, 6, and 23. He argues that courts have relied on Federal statutes’ definitions of citizenship to inform their understandings of citizenship, resulting in a large number of people being inadequately protected. Chen’s stance is that Courts should be reading these sections of the Charter in a more purposive manner in an attempt to include non-citizen groups who are also entitled to the same degree of protection.

Chen posed two questions in relation to s.3, s.6 and s.23. Firstly, should the meaning of “citizen of Canada” depend on legislative definition? If so, are we allowing Parliament to skirt its Charter obligations? Secondly, he asks what a judicially constructed definition of citizenship would look like.

Chen proposed that citizenship can be understood as membership in a state. More specifically, it is the desire to foster a deep connection to a society. This idea is supported by social science research and the Supreme Court in the case of Ontario v Winner [1951] SCR 887. However, the present legislative definition of citizenship is not broad enough to encompass all groups of people who possess these qualities. There are non-citizens with similar interests and relationships to the Canadian state that are entitled to the protection of the Canadian government under this definition.

The second part of Chen’s legal argument was focused on how s.15 of the Charter interprets citizenship as an analogous ground of protection. Currently, the court only targets policies that draw a clear line between citizenship and non-citizenship. For example, in Toussaint v Canada (Minister of Citizenship and Immigration), 2011 CAF 208, the Federal Court of Appeal rejected a claim that a law discriminated against non-citizens simply because other non-citizen groups are protected by the law. This is a simplistic line of argument that tends to erase the distinct groups that exist under the non-citizen category, such as migrant workers, international students, and permanent residents. Despite their universal non-citizen legal status, these groups receive differential rights from the government.

Chen emphasized that Canadian courts have ruled that discrimination based on one type of disability is still disability discrimination, even if other types of disabilities are protected. In recognizing that there are different non-citizen groups who receive differential treatment, the same logic should be applied to them.

Overall, Professor Chen presented a compelling argument for the courts to understand citizenship in a way that more actively protects individuals’ rights. In questioning the courts’ reliance on Parliament’s definition of citizenship, he opened up the possibility of protecting more individuals under the Charter who are already substantive members of Canadian society. Furthermore, in challenging the normative line between citizenship and non-citizenship under s.15, Professor Chen advocates for a more nuanced and complex understanding of differential (non)citizenship experiences.

Michelle Huang and Jeffrey Wang are 1L JD Candidates at the Faculty of Law. They are also members of the Asper Centre Immigration & Refugee Law student working group this year.

Asper Centre Executive Director Cheryl Milne awarded 2019 Law Society Medal

Posted on by Tal Schreier

The Asper Centre’s Executive Director Cheryl Milne is among the 2019 recipients of the Law Society of Ontario Medal, which recognizes and lauds “exceptional career achievements and contributions to their communities.”

Cheryl Milne’s citation says she “has had a profound and unique influence on the Canadian legal landscape as a child rights advocate. She is a leading constitutional and Charter rights litigator, an innovative experiential legal educator, and a generous legal community volunteer. She provided front-line legal services to children and teenagers across a wide range of legal needs for many years and now leads constitutional advocacy in an academic centre she helped to create.”

The Asper Centre’s former Constitutional-Litigator-In-Residence, Susan Ursel and the Faculty of Law’s Professor Carol Rogerson are also medal recipients.

The award ceremony will take place on May 22 2019.

Read UTLaw announcement here and the LSO Gazette Making Lasting Contributions article about Cheryl Milne here.

What they don’t know will hurt them: no consent, gender identity or social media in the Ontario sex ed curriculum

Posted on by Tal Schreier

By Leslie Anne St. Amour

In my opinion, to call the court’s decision dismissing the case against the Ontario government in respect to the repeal and replacement of the sex ed curriculum disappointing would be an understatement. I would consider instead: disheartening, or infuriating.

In 2018 the Ontario government issued a directive to repeal the 2015 sexual education curriculum and replace it with the 2010 curriculum, which had the same sexual education content as the 1998 curriculum. The previous curriculum did not include among other things consent, gender identity and expression, cyberbully or sexting. The Elementary Teachers’ Federation of Ontario (ETFO), the Canadian Civil Liberties Association (CCLA), and a parent of a child affected brought two applications to judicially review this directive, which essentially required the determination of one question: whether the directive and the events surrounding the decision infringed the Charter rights of teachers, students, and/or parents.

Arguments were made regarding sections 2(b), 7 and 15(1) of the Charter of Rights and Freedoms in this case by the ETFO and the CCLA. Several interveners also took part to provide other perspectives including: Grand Council of Treaty 3, Justice for Children and Youth and Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario.  This article provides my opinion on the Charter analysis provided by the court, but I will note there was also a discussion of jurisdiction and standing.

I understand how the court came to dismiss the applications, but I still believe it was incredibly important that the case was brought. We need queer youth, young women and girls and survivors of sexual violence to know we stand with them. The court did clarify that teachers can teach from the 2015 curriculum with no fear of professional repercussions and in many ways, that is a win for students with willing teachers. But the concern remains for students of teachers unwilling to teach this content for personal reasons or because of the opinions of those around them.

2(b) – Freedom of Expression

In addressing the section 2(b) freedom of expression analysis, the court examined the combination of the removal of topics from the curriculum along with statements made by members of the government and the creation of a website which allowed for the submission of information on teachers and classrooms. The complainants alleged that this constellation of factors established a violation of teachers’ freedom of expression by preventing them from teaching facets of the 2015 curriculum which were removed by the replacement with the 2010 curriculum.

In finding that there was no 2(b) violation, the judge appears to rely on the fact that counsel clarified the positions of the Minister in respect to what was fair game for teachers to teach under the new curriculum. I am frustrated by this result as this clarification would not have come had this not been brought to court and runs counter to the common understanding of the statements made by the government, which the court itself called “Ill-considered”. However, I expect some teachers will find solace in this decision as it confirms their ability to provide necessary information on consent, gender identity, sexual orientation, sexting and cyberbullying to their students without fear of professional sanctions.

7 – Guarantee to Life, Liberty and Security of the Person

While working with the Asper Centre, within our working group, I focused on the s. 7 arguments and I knew this would be a difficult argument to make but I hadn’t expected the court’s focus on a lack of evidence of harm stemming from the 2010 curriculum. Jurisprudence on s. 7 does not require direct scientific evidence, but rather a sufficient casual connection is enough to draw a reasonable inference on a balance of probabilities.

In my mind, every sexual assault which was committed by a person who had been taught sex ed in Ontario during the time period the 2010 curriculum was in use or was perpetrated against someone had been taught sex ed in Ontario during that time arguably had a link to the curriculum. This is due to a lack of education around the requirement of consent to engage in sexual activity. I thought of the young men and women who didn’t know they needed to say yes, didn’t know how to say no or didn’t know what to do when their no or lack of yes meant nothing to someone else. I think of the young men and women now having to face the reality of having engaged in sexual misconduct or assault because no one taught them any better in a world which rewards toxic masculinity and rape culture and encourages women to bite their tongue and let it go.

And so, I knew this argument would be hard to make because a government does not have a positive burden to ensure life, liberty and security of the person and because a policy of one government does not bind the next, but I hadn’t expected part of the issue to be a conceived lack of harm.

15(1) – Equality

In addressing the s 15(1) arguments the court references the characterization of the curriculum as a benefit which is not available to certain groups however, does not address this point specifically in its reasons. The court reiterates the jurisprudence surrounding the fact that the repeal of a policy does not constitute a Charter violation if it removes a benefit that previously existed. However, my understanding of the framing of the issue as a benefit which is not available to certain groups such as LGBTQ students is a desire to see the current curriculum, separate from the repeal itself, as a violation.

By providing a sexual education curriculum which does not teach content relevant to diverse gender identities or sexual orientations, cis and straight students are receiving a benefit from the government that other students cannot receive. That benefit is a sexual education curriculum which is relevant to them. The court does not address the s. 15 claim from this angle, addressing only the lack of requirement to continue to provide a benefit that had previously been received.

I want to end this article by saying that I and many others will continue to stand with the students impacted by the repeal and this decision and continue to do what we can to support them and their access to the necessary information they are no longer guaranteed in the classroom. Therefore, I’ve provided a list of links below to resources that are working to fill this gap:

My Sex Ed – Resources

Youthline

Planned Parenthood- Factsheet

Teen Health Source

Leslie Anne St. Amour is 2L JD Candidate at the Faculty of Law and a former Asper Centre clinic student. [read Leslie Anne’s previous blog post reflecting on her work on this case as an Asper Centre Clinic student.]