Courts Martial

 

COURT MARTIAL

 

Citation:  R v Wehmeier, 2012 CM 1006

 

                                                                                                                  Date:  20120605

                                                                                                                  Docket:  201212

 

                                                                                                        Standing Court Martial

                                                                                                                   19 Wing Comox

                                                                         British Columbia, Canada

 

Between: 

 

Her Majesty the Queen

 

- and -

 

Paul Wehmeier, Applicant

 

 

Before:  Colonel M. Dutil, C.M.J.

 

 

 

Restriction on publication:  By court order made under section 179 of the National Defence Act and section 486.4 of the Criminal Code, information that could disclose the identity of the person described in this judgment as the complainant shall not be published in any document or broadcast or transmitted in any way.

 

 

DECISION RESPECTING AN APPLICATION THAT SECTIONS 60(1)(f) AND 61(1)(b) OF THE NATIONAL DEFENCE ACT VIOLATE THE RIGHTS OF THE ACCUSED UNDER SECTION 7 OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS                                                                                                

 

(Orally)

 

INTRODUCTION

 

[1]               The applicant had made an application under article 112.05(5)(e) of the Queen’s Regulation & Orders for the Canadian Forces that sections 60(1)(f) and 61(1)(b) of the National Defence Act violate section 7 of the Canadian Charter of Rights and Freedoms (The Charter) because it engaged the applicant's liberty interests in a manner that is not in accordance with the principles of fundamental justice.  Specifically sections 60(1)(f) and 61(1)(b) are broader than what is required to achieve the legitimate objective of the legislation.  The applicant is seeking an order declaring sections 60(1)(f) 61(1)(b) of the National Defence Act (NDA) of no force and effect to the extent of the inconsistency pursuant to section 52(1) of the Constitution Act, 1982, because it is inconsistent with section 7 and cannot be saved by section 1 of the Charter.

 

THE EVIDENCE

 

[2]               The evidence before this court consists of the following:

 

a)         the matters for which the court has taken judicial notice pursuant to section 15 of the Military Rules of Evidence.

 

b)         the charge sheet (Exhibit M2-4) dated 16 February 2012 by Major Dylan Kerr, an officer authorized to do so under the National Defence Act.

 

c)         the documentary evidence filed by consent; namely:

 

(i)                 excerpts from the House of Common Debates Official Report, First Session—Twenty-Second Parliament, Volume II 1953-54, concerning the purpose of clause 10 - Definition of "persons accompanying Canadian Forces", 11 February 1954 ( Exhibit M2-2); and

 

(ii)               excerpts from Minutes of Proceedings and Evidence No. 2, 24 May 1950, Report for the Special Committee on Bill 133 (An Act Respecting National Defence, Session 1950, House of Commons (Exhibit M2-3); and

 

d)         the testimonies of the witnesses heard during the plea in bar of trial; namely, Warrant Officer Vincent and Captain Piché.

 

The Facts

 

[3]               Mr Wehmeier was charged for having committed 3 services offences while he was accompanying a unit of the Canadian Forces in Germany to perform his duties as a civilian employee; that is, as a Peer Educator.  The charge sheet (Exhibit M2-4) dated 16 February 2012 by Major Dylan Kerr, an officer authorized to do so under the National Defence Act, reads as follows:

 

"The accused, Paul Wehmeier, Director Casualty Support Management, Canadian Forces, is charged with having committed the following offences:

 

FIRST CHARGE, SECTION 130 OF THE NATIONAL DEFENCE ACT, AN OFFENCE PUNISHABLE UNDER SECTION OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, SEXUAL ASSAULT, CONTRARY TO SECTION 271 OF THE CRIMINAL CODE.

 

Particulars:  In that he, on or about 19 March 2011, at Bitburg, Germany, while employed as a Peer Educator, did commit a sexual assault upon S.R.

 

SECOND CHARGE, SECTION 130 OF THE NATIONAL DEFENCE ACT, AN OFFENCE PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, UTTERING THREATS, CONTRARY TO PARAGRAPH 264.1(1)(A) OF THE CRIMINAL CODE.

 

Particulars:  In that he, on or about 19 March 2011, at Bitburg, Germany, while employed as a Peer Educator, did knowingly utter a threat to Corporal Kimberly Caldwell to cause death to Corporal Kimberly Caldwell.

 

THIRD CHARGE, SECTION 130 OF THE NATIONAL DEFENCE ACT, AN OFFENCE PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, ASSAULT, CONTRARY TO SECTION 266 OF THE CRIMINAL CODE.

 

Particulars:  In that he, on or about 19 March 2011, at Bitburg, Germany, while employed as a Peer Educator, did commit an assault upon Corporal Daniel Lessard."

 

[4]               The record of the testimonial evidence heard during the plea in bar of trial was accepted by counsel to be used in this application.  Warrant Officer Vincent testified that in March 2011 he was employed as a member of the Second Line of Communications Detachment (SLOC Det), which he described as a unit that was stood up to provide Home Leave Travel Assistance (HLTA) for military personnel coming out from Kandahar Airfield, Afghanistan, as well as being the main centre for Technical Assistance Visits (TAVs).  He was stationed in Germany at Spangdahlem Air Force Base, accommodated in the Eiffel Inn Towers on base and ran by the US Air Force.  He stated that they were between 45 to 50 personnel spread in three locations, namely Spangdahlem, Bitburg and Trier.  Warrant Officer Vincent explained that the SLOC Det was also involved with the Out of Cycle TLD (Third Location Decompression Center) in Trier for people coming out of Afghanistan who had to do a five-day stay to decompress and take courses and classes on how to reintegrate with families and the workplace in Canada.

 

[5]               Warrant Officer Vincent stated that while in Spangdahlem, he would process the claims for the people on their arrival in Spangdahlem and the meal claims every 15 days.  He was also responsible for the day-to-day administration of the personnel in place.  Warrant Officer Vincent stated that the personnel in place were both military and civilian.  The number of civilians was between 12 and 15.  As to these civilians, they were composed of PSP Personnel and Mental Health Specialists.  With regard to his role concerning these civilians, Warrant Officer Vincent stated that his team was just administering where they would be living and abide by the SLOC Det rules depending where they would be located either in Spangdahlem, Bitburg or Trier or a combination of these locations.  Warrant Officer Vincent testified that he would normally make these arrangements because he was the point of contact for the three hotels and that they, meaning the Department of National Defence or the Canadian Forces, would pay for the accommodations.  He further stated that he would also administer the routine orders, which he said applied to the civilians.

 

[6]               Warrant Officer Vincent testified that Mr Wehmeier was employed as a Peer Educator in Trier, Germany.  According to him, the Peer Educators were accommodated in a hotel in Trier that had been contracted by CANOSCOM and administered by SLOC Det.  As to Mr Wehmeier, Warrant Officer Vincent said that Mr Wehmeier's hotel accommodation was paid directly by the Canadian Forces after they had received the invoice and certified that the services had been rendered.  The invoices were then sent to Ottawa for payment.  According to Warrant Officer Vincent, Mr Wehmeier's travel arrangements to and from Germany were made by the Canadian Forces or the Department of National Defence.  Finally, Warrant Officer Vincent stated that rations were not provided to Mr Wehmeier, as he was treated pursuant to the applicable per diem Treasury Board guidelines for meal entitlement on temporary duty.  This statement was corroborated by Captain Piché.

 

[7]               Captain Piché testified that during March 2011, she was a member of a mental health team for decompression of troops coming back from Afghanistan.  She stated that she became the team supervisor because she was the only person wearing a rank. Captain Piché explained that the role of the team was to conduct the whole briefing and that they stayed for the most part at the Park Plaza Hotel in Trier, Germany, for a number of days before moving to Spangdahlem on base, either in quarters or in the hotel on base, and in Bitburg in temporary quarters.  To her knowledge, the accommodation arrangements were dictated by the Deputy Commanding Officer of SLOC Det, although she provided input as to where they should be staying, and the process was usually initiated by the chief clerk or the orderly room.  Captain Piché testified that during that period she reported to the DCO of SLOC Det, Major Gilbert, who had been also the acting Commanding Officer during the absence of Lieutenant-Colonel Boyle.  Captain Piché testified that the Peer Educators could not decide where they would stay while in Germany. They would be on a claim and stay where the services would be provided.  As a supervisor, she would follow the applicable policies, directives and directions and she would communicate them to her team members.  Captain Piché further testified that Mr Wehmeier, as part of her team, stayed at the Park Plaza Hotel located in Trier, Germany, further the arrangements made by the chief clerk, Warrant Officer Vincent and two corporals that worked for him. 

 

[8]               After a review of the evidence and the wording of sections 60(1)(f) and 61(1)(b), the court was satisfied that Mr Wehmeier was subject to the Code of Service Discipline at the time of the alleged offence.  Briefly, the court concluded that the circumstances indicated that Mr Wehmeier was not a simple visitor, but that he was accompanying the SLOC Det in order to perform his own duties, which were part of the SLOC Det's mandate.  The court considered that the issue at the plea in bar of trial could be expressed in the following terms:  In order to be accommodated by a unit or other element for the purposes of section 61(1)(b), does it necessarily require that the person be lodged within the physical establishment of that unit?  The court answered in the negative and concluded that the term "provide" in the context of "provide for" would include the making of adequate preparation or arrangements.  The role and functions of the SLOC Det and its staff in the making of arrangements and the administration for the lodging of the personnel previously described in Spangdahlem, Bitburg and Trier fell within the scope of section 61(1)(b) of the Act.  Accordingly, Mr Wehmeier was a person accompanying a unit or other element of the Canadian Forces and ultimately subject to the Code of Service Discipline at the time of the alleged offences.

 

POSITION OF THE PARTIES

 

The Applicant

 

[9]               The applicant now submits that sections 60(1)(f) and 61(1)(b) violate his rights under section 7 of the Canadian Charter of Rights and Freedoms (The Charter) because it engages the applicant's liberty interests in a manner that is not in accordance with the principles of fundamental justice.  Specifically, sections 60(1)(f) and 61(1)(b) are broader than what is required to achieve the legitimate objective of the legislation.  The applicant is seeking an order declaring sections 60(1)(f) and  61(1)(b) of the National Defence Act (NDA) of no force and effect to the extent of the inconsistency pursuant to section 52(1) of the Constitution Act, 1982, because it is inconsistent with section 7 and cannot be saved by section 1.

 

[10]           The applicant relies mainly on R v Heywood, [1994] 3 S.C.R. 761 in support of its application to the effect that the legislative scheme under scrutiny is overbroad, i.e., broader that necessary, and that this restriction on the liberty interests of the accused is not in accordance with the principles of fundamental justice.

 

[11]           The applicant refers mainly to the excerpts of the House of Commons Debates (Exhibit M2-2) to argue that the purpose of the impugned sections of the National Defence Act was captured in the following remarks, made by Mr Campney, then Associate Minister of National Defence, at page 2009:

 

"Under Canadian and also under British and American military law, civilians accompanying the armed forces when engaged in active operations have always been subject to military law.  One of the reasons for this is that the forces are often operating, particularly in time of war, in areas where civil courts and authorities are non-existent or unable to act.  It is obviously essential that persons accompanying the forces should be subject to some law at all times.  Furthermore, the inherently dangerous nature of military activities makes it essential that the close control be exercisable by the military authorities over all persons participating in those activities."

 

[12]           The applicant argues that the fact that the impugned provisions would apply to a civilian person accommodated by the Canadian Forces in a private hotel in a foreign country such as Germany, as in this case, far exceeds the purpose of the legislation in the circumstances, particularly where there was a fully functional system of criminal justice in Germany.  In addition, the applicant argues that the provisions are overbroad because the legislative scheme applies to all persons accompanying the Canadian Forces without regard to whether it is necessary to exercise control over them for safety reasons or to subject them to the rule of law.  Finally, the applicant submits that the principles of fundamental justice require that such provisions should require that formal notice be given to the persons accompanying the Canadian Forces that they are subject to the Code of Service Discipline before they accompany the Forces and liable to be charged, dealt with and tried under the Code as this was considered in Heywood.

 

[13]           The applicant further argues that these legislative provisions are not justifiable under section 1 of the Charter because there is no evidence that the objective of the legislation was pressing.  The applicant submitted that a review of the case law since 1954 does not reveal that section 61(1)(b) was relied upon to ensure that the Canadian Forces could exercise control over the persons or subject them to the rule of law.  The applicant submits that in absence of such evidence, these provisions cannot be saved under section 1 of the Charter.  Counsel for the applicant relies on the remarks made by Cory J., for the majority, in Heywood at paragraph 69:

 

                This Court has expressed doubt about whether a violation of the right to life, liberty or security of the person which is not in accordance with the principles of fundamental justice can ever be justified, except perhaps in times of war or national emergencies:  Re B.C. Motor Vehicle Act, supra, at p. 518.  In a case where the violation of the principles of fundamental justice is as a result of overbreadth, it is even more difficult to see how the limit can be justified.  Overbroad legislation which infringes s. 7 of the Charter would appear to be incapable of passing the minimal impairment branch of the s. 1 analysis.

 

[14]           The applicant suggests that sections 60(1)(f) and 61(1)(b) of the National Defence Act should be declared of no force and effect pursuant to section 52 of the Constitution Act, 1982,  and that they be severed to the extent of the inconsistency.  Finally, the applicant asks this court to consider that should this court find that the violation of Mr Wehmeier's rights resulted from the actions of state agents in the application of the relevant provisions, the court should consider granting a remedy under section 24(1) of the Charter.

 

The Respondent

 

[15]           The respondent submits that this application should fail for the following reasons:

 

a)                  the evidentiary foundation is insufficient to entertain this Charter challenge.

 

b)                  the overbreath analysis provided in Heywood does not apply in the context of this case, because it deals with a jurisdictional provision as opposed to an offence provision.

 

c)                  alternatively, should the court apply the Heywood test, the said test was not satisfied in the circumstances.

 

[16]           The respondent agrees with the applicant as to the purpose of sections 60(1)(f) and 61(1)(b) to the effect that persons accompanying the forces should be subject to some law at all times and that the inherently dangerous nature of military activities makes it essential that the close control be exercisable by the military authorities over all persons participating in those activities.  However, counsel for the respondent submits that a third valid purpose can be found at the end of the second paragraph of page 2010 of the House of Commons Debates (Exhibit M2-2), where Mr Campney stated:

 

"In other words, we are trying to create the maximum jurisdiction under all existing agreements and laws that we can acquire to ourselves in regard to the people abroad."

 

[17]           The respondent finally relies on R v Clay, [2003] 3 S.C.R. 735 to the effect that the applicant failed to meet its burden of proof because overbreath can only be made out if the adverse effect of a legislative measure is grossly disproportionate to the state interest the legislation seeks to protect.

 

[18]           In response to a question by the court, both parties agree that a declaration of invalidity of sections 60(1)(f) and 61(1)(b) of the Act would have the following consequences, namely:

 

a)                  the applicant would be subject to the exclusive jurisdiction of Germany with regard to the facts that led to the charges before the court; and

 

b)                  the applicant could not be tried by a civil court in Canada with regard to the said facts because section 273 of the National Defence Act would have no application as it only applies to a person subject to the Code of Service Discipline.

 

DECISION

 

Legal Analysis

 

[19]           I find it necessary for the purposes of this application to reiterate the basic principles concerning the raison d'être of the Canadian Military Justice System, which is an integral part of the broader Canadian Justice System, before considering the purpose of specific legislative provisions contained in the National Defence Act.  Of course, its primary purpose is concerned with the maintenance of discipline and operational effectiveness of the Canadian Forces in Canada and throughout the world, but this affirmation is insufficient to characterize this system of justice.  The remarks made by Chief Justice Lamer in R v Généreux, [1992] 1 S.C.R. 259, expand on the purpose of the Code of Service Discipline at paragraph 31, where he stated, in part:

 

Although the Code of Service Discipline is primarily concerned with maintaining discipline and integrity in the Canadian Armed Forces, it does not serve merely to regulate conduct that undermines such discipline and integrity.  The Code serves a public function as well by punishing specific conduct which threatens public order and welfare.  Many of the offences with which an accused may be charged under the Code of Service Discipline, which is comprised of Parts IV to IX of the National Defence Act, relate to matters which are of a public nature.  For example, any act or omission that is punishable under the Criminal Code or any other Act of Parliament is also an offence under the Code of Service Discipline.  Indeed, three of the charges laid against the appellant in this case related to conduct proscribed by the Narcotic Control Act.  Service tribunals thus serve the purpose of the ordinary criminal courts, that is, punishing wrongful conduct, in circumstances where the offence is committed by a member of the military or other person subject to the Code of Service Discipline ....

 

In Application under s. 83.28 of the Criminal Code (Re) [2004] 2 S.C.R. 248, Iacobucci and Arbour JJ., for majority stated, at paragraph 34:

 

The modern principle of statutory interpretation requires that the words of the legislation be read "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”... The modern approach recognizes the multi-faceted nature of statutory interpretation.  Textual considerations must be read in concert with legislative intent and established legal norms.

 

[20]           The application before the court challenges the constitutionality of sections 60(1)(f) and 61(1)(b) of the Act concerning the extent by which a person accompanying the Canadian Forces may be subject to the Code of Service Discipline.  It is submitted that these provisions are overbroad and that they deprive the rights of Mr Wehmeier under section 7 of the Charter contrary to the principles of fundamental justice.  For something to be a principle of fundamental justice, it must be a legal principle for which there is a sufficient consensus that it is vital or fundamental to our societal notion of justice and it must be capable of being identified with precision and applied in a manner that yields predictable results.  This criteria supports the view that a claim of overbreath can be considered as part of the fundamental justice inquiry (See R v Malmo-Levine, [2003] 3 S.C.R. 571 at paragraph 113; and R v D.B. [2008] 2 S.C.R. 3 at paragraph 46).

 

[21]           The court considers that there is a sufficient factual foundation before it to embark into the enquiry asked by the applicant.  Moreover, the issue raised in this application would affect how the trial would unfold and I find that it is therefore appropriate to deal with the challenge before the commencement of the trial.  In addition, the court does not agree with counsel for the respondent that an analysis of whether the relevant provisions are overbroad cannot be made in adopting the approach provided in R v Heywood because it would only apply to challenges of offence sections as opposed to jurisdiction sections like it is the case in this application.  I find no support for such restrictive interpretation of the doctrine of overbreadth.  However, in R v Clay, [2003] 3 S.C.R. 735 at paragraph 36 to 38, Chief Justice McLachlin, for the majority made the following remarks concerning the overbreadth argument:

 

36           In its application under s. 1 of the Charter, overbreadth fits comfortably under the “minimal impairment branch” of the Oakes test: see R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at p. 629.  In s. 1, of course, the Court is examining an encroachment on constitutionally protected conduct.  A protected Charter right or freedom will already have been found to be infringed, and the s. 1 issue is whether the infringement is a reasonable limit that can be demonstrably justified in a free and democratic society.  In the reasons set out in Malmo-Levine and Caine, we have concluded that using marihuana is not, as such, a constitutionally protected activity.  Thus, overbreadth in its s. 1 aspect is not engaged in this case.

 

37           The analysis of overbreadth in relation to s. 7 was considered in R. v. Heywood, [1994] 3 S.C.R. 761, at p. 793, where Cory J. observed that:

 

The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.

 

38           Overbreadth in that respect addresses the potential infringement of fundamental justice where the adverse effect of a legislative measure on the individuals subject to its strictures is grossly disproportionate to the state interest the legislation seeks to protect. Overbreadth in this aspect is, as Cory J. pointed out, related to arbitrariness.  In Heywood, he went on to note, at p. 793:

 

In analyzing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by the legislature.  While the courts have a constitutional duty to ensure that legislation conforms with the Charter, legislatures must have the power to make policy choices.

 

[22]           The court generally agrees with the comments made by counsel with regard to the purpose and objective of sections 60(1)(f) and 61(1)(b) as they were expressed by the Associate Minister of the Department of National Defence on 11 February 1954 (Exhibit M2-2); namely, that persons accompanying the forces should be subject to some law at all times.  Furthermore, the inherently dangerous nature of military activities makes it essential that close control be exercisable by the military authorities over all persons participating in those activities and that the Government was trying to create the maximum jurisdiction under all existing agreements and laws that Canada could acquire to ourselves in regard to the people abroad.  However, these elements must be examined in light of the words of the legislation as a whole in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.  As to the purpose of the impugned sections, the court notes that counsel have omitted an essential element clearly expressed by Mr Campney at paragraph 3 of page 2010 of the Debates (Exhibit M2-2):

 

"The arrangements made by Canada with a number of the countries in which our forces are or may be stationed enable Canadian criminal law and procedures to be applied in respect of persons accompanying our forces as an alternative to having the criminal law and procedures of the country in which an alleged offence has been committed applied.  In order to secure the benefits of these arrangements we must not only be in a position—I think this is the important fact about this clause—to exercise effective jurisdiction over such persons but it must also be clear to the authorities of the foreign country that we have and can exercise such jurisdiction. Clause 10 is designed to accomplish this."

 

[23]           Counsel for the applicant minimized the importance of this aspect of the legislation, which was clearly identified by the then Associate Minister of National Defence.  These remarks were made shortly after his initial comments on clause 10, at page 2008, where he stated:

 

            "When the arrangements come into effect whereby West Germany will regain almost complete sovereignty, the status of Canadian personnel will undergo a change.  The German courts will then have jurisdiction in criminal matters, but only in cases where Canadian military tribunal have not by the law of Canada been given jurisdiction.

 

            As regards France, Belgium and the United States, the NATO status of forces agreement now applies to our forces in these three countries.  Under that agreement Canada has the primary right to exercise jurisdiction of members and civilian employees of the Canadian forces in those countries in relations to:  (a) offences solely against the property or security of Canada, (b) offenses solely against the person or property of another member or employee of the Canadian Forces; and (c) offences arising out of any act or omission done in the performance of official duty. 

 

            Canada has no primary right to exercise jurisdiction over dependants, but may request these countries to waive their right to exercise jurisdiction, and they are bound by the agreement to give sympathetic consideration to such a request."

 

[24]           The fact that Germany has a fully functional system of criminal justice, as argued by the applicant, does not affect the original intent of Parliament that Canada would retain primary jurisdiction over Canadian Forces members and the persons who accompany them in the circumstances previously described.  The fact that a person accompanying the Forces may be with a unit or other element for a short period of time is not relevant to the issue of jurisdiction of Canada; however, it may dictate how this jurisdiction should be exercized.  It should not be lost that the amendment to the National Defence Act that became section 61(1)(b) was not made to "extend but limit the jurisdiction that might be exercised by the services over accompanying civilians ...as it [was] not intended that the services will in fact exercise jurisdiction over civilians unless it is absolutely essential or in the interests of the civilians themselves that they do so" (Exhibit M2-2, at page 2009).  It was understood that within Canada, ordinary criminal courts, by virtue of the National Defence Act would continue to be supreme and have the power to supplant the jurisdiction of service courts.

 

[25]           More importantly, Mr Campney made it clear that this amendment was introduced as it was "important for the protection of dependents and other civilians accompanying the forces abroad that the extent to which they are subject to the Canadian jurisdiction be clearly defined" (Exhibit M2-2, page 2010).  Clearly, the general intent of this amendment was to protect the interests of the persons who accompanied the Canadian Forces abroad, which then did not include the protection afforded by the Charter, to be tried according to our law.  This would ensure that a person accompanying the Forces abroad would be treated in a manner that brought predictability and certainty as to the legal principles and rights that would be applied.  This was a legitimate objective that is still valid.  Given the complexity of situations where these situations may arise, the definition contained in section 61 of the National Defence Act is not arbitrary or disproportionate.  The umbrella provided by this definition is for the benefit of an accused to be treated with all the protection accorded to a Canadian citizen, including the Charter.  Balancing the state interests to exercise primary jurisdiction over civilians who accompany the Canadian Forces abroad and make it clear to the authorities of the foreign country that Canada has and can exercise jurisdiction such jurisdiction, and the rights of such an accused to be treated with the fullest extent of the rights afforded to other Canadian citizens, the court concludes that the provisions are not grossly disproportionate to the state interest the legislation seeks to protect. 

 

[26]           In striking this balance, section 273 of the Act is paramount to the exercise of jurisdiction of Canada in the context of the legislation and its intended purpose that civilians not be tried by service tribunals unless it is absolutely essential or in the interests of the civilians themselves that they do so.  Such necessity, for example, would require that a civilian accompanying the Forces be tried abroad by a service tribunal because he or she will continue to perform his or her functions as an employee in that same location or if he or she is a dependant who will continue to live abroad with his or her service spouse.  For other cases, the legislative scheme can only operate in conjunction with sections 60(1)(f) and 61(1)(b).

 

[27]           There is no conclusive evidence that the exercise of jurisdiction by a state agent would affect the legitimacy and constitutionality of sections 60(1)(f) and 61(1)(b) of the Act.  In absence of these provisions, a person who is accommodated by a unit or other element of the Canadian Forces could only be tried by a competent tribunal of a foreign country, without the protection of the legal rights available under the Charter and the clear intent of Parliament that Canada will exercise primary jurisdiction over Canadian Forces personnel and persons accompanying them abroad—and I use the word "Canada," not "Canadian Forces"—however, this ruling is strictly limited to the constitutionality of sections 60(1)(f) and 61(1)(b) of the Act.

 

[28]           After a careful review of sections 60(1)(f) and 61(1)(b) of the Act in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament, the court concludes that the Applicant has not met its burden of proof that the provisions are overbroad and that some applications of these provisions would be arbitrary and disproportionate.

 

Conclusion and Disposition

 

 

FOR ALL THESE REASONS:

 

 

[29]           The application is denied.

 

 

 

COLONEL M. DUTIL, C.M.J.

 

 

 

 

Counsel:

 

Lieutenant-Commander P.D. Desbiens, Directorate of Defence Counsel Services

Lieutenant-Commander M. Létourneau, Directorate of Defence Counsel Services

Major A.M.W. Reed, Directorate of Defence Counsel Services

Counsel for the applicant

 

Major R.D. Kerr, Canadian Military Prosecution Services

Counsel for the respondent