Courts Martial

Citation: R. v. Corporal A.E. Liwyj, 2008 CM 2001

Docket: 200719

DISCIPLINARY COURT MARTIAL

CANADA

MANITOBA

CANADIAN FORCES BASE SHILO

Date: 9 January 2008

PRESIDING: COMMANDER P.J. LAMONT, M.J.

HER MAJESTY THE QUEEN

v.

CORPORAL A.E. LIWYJ

(Accused)

DECISION RESPECTING AN ALLEGED VIOLATION OF SECTIONS 7 AND 11(d) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

[1]                    For centuries military and naval courts martial have arrived at their findings and sentence by the majority vote of the members of the court. The statutory expression of this custom is now found in section 192 of the National Defence Act which reads:

(1)           The members of the panel of a General Court Martial or a Disciplinary Court Martial determine the court martial's finding and its decision in respect of any other matter or question arising after the commencement of the trial that is not a question of law or mixed law and fact.

(2)          The decisions of the panel of a General Court Martial or a  Disciplinary Court Martial are determined by the vote of a majority of its members.

[2]                    At the opening of his trial by Disciplinary Court Martial on three charges of disobeying a lawful command of a superior officer, and prior to plea, Corporal Liwyj applies for a declaration that section 192(2) of the NDA is of no force and effect because the simple majority vote is inconsistent with sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms, and for an order reading in the requirement for a unanimous vote of the members of the Disciplinary Court Martial.

[3]                    Although the issue of majority findings at court martial has arisen in the past, and has been brought to the Court Martial Appeal Court, neither military trial courts nor the CMAC have dealt with the issue since 1999 when substantial changes effected to the NDA by S.C.1998, c.35 (Bill C‑25) came into force.

[4]                    The Applicant argues that section 11(d) of the Charter guarantees the right of a person charged with an offence to be presumed innocent until guilt is proven beyond a reasonable doubt, and that where a majority of only two panel members of a Disciplinary Court Martial vote to find guilt, guilt is not found beyond a reasonable doubt because the dissenting vote of the third member raises a significant doubt. It is argued that where only two‑thirds of the panel vote for a finding of guilty this is really no more than a finding of probable guilt.

[5]                    The Respondent Crown argues that the issue has already been dealt with and decided against the Applicant in decisions of the Court Martial Appeal Court that are binding on this court. In any event, subsection 192(2) of the NDA should be examined in the context of the system of trial by court martial, and when so considered the majority vote rule does not infringe the presumption of innocence under s.11(d). Other jurisdictions with a legal requirement for proof beyond a reasonable doubt permit a jury verdict by majority, and section 7 of the Charter does not add anything to the protections offered by s.11(d).

[6]                    In the event the court finds an infringement of the Charter, the Respondent does not argue to sustain the statute under section 1 of the Charter.

[7]                    The Applicant replies that the previous statements of the CMAC are either obiter dicta or did not deal with the submission that the doctrine of reasonable doubt protected by s.11(d) is compromised by a system of majority findings, or the rulings were confused by references to s.11(f) of the Charter.

[8]                    In R. v. Brown (1995) 5 CMAR 280 the Court Martial Appeal Court addressed the issue of whether the majority vote system at court martial "breache[d] the presumption of innocence guaranteed by paragraph 11(d)".  Hugessen J speaking for the Court stated (at pararaph 19):

As far as concerns the guaranteed presumption of innocence enshrined in paragraph 11(d), the jurisprudence of this Court is clear that such guarantee is not infringed by the absence of a requirement of unanimity to support a court martial's findings.

[9]                    I cannot read the statements of Hugessen J in Brown as merely obiter dicta. In my view, when Hugessen J stated that "the appellant's Charter arguments cannot be sustained" this must be accepted as the dispositive ratio decidendi of the case on that issue.

[10]                  The Applicant argues (paragraph 22 of the factum) that the issue of majority verdicts at court martial has not had "a robust and thorough analysis" by military courts. But even if the reasoning of the Court Martial Appeal Court may be open to attack, and I do not wish to be taken or understood to say that it can, that does not assist the Applicant. This court is bound by the clear statement of the higher court. See R. v. Henry [2005] 3 SCR 609. If the Applicant believes the decision of the higher court to be incorrect then the point must be taken in that higher court, or possibly on appeal from the higher court.

[11]                  I am not persuaded that the Court Martial Appeal Court was not dealing specifically with the relationship between majority verdicts and the doctrine of reasonable doubt in the ruling in Brown. This doctrine is of course intimately related to the constitutional guarantee of the presumption of innocence. See R. v. Oakes [1986] 1 SCR 103. Indeed, the CMAC clearly acknowledges the close relationship when Hugessen J writes, at paragraph 20:

There can, of course, be no question that the presumption of innocence applies to courts martial and that the members of the court, when they reach their conclusion, are required to ask themselves if they are satisfied beyond a reasonable doubt as to the guilt of the accused.

[12]                  In her factum counsel on behalf of the Applicant also relies on section 7 of the Charter to support a claim for the declaration sought. Section 7 reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[13]                  Counsel for the Applicant did not articulate, either in writing or in oral argument, a principle of fundamental justice upon which she relies other than the presumption of innocence protected by section 11(d) and the concomitant doctrine of reasonable doubt. On the evidence and argument I have heard in this application I am not persuaded that section 7 adds anything to the argument of the Applicant under section 11(d).

[14]                  For these reasons therefore, the application is dismissed.

                                                                                 COMMANDER P.J. LAMONT, M.J.

COUNSEL:

Captain R.J. Henderson, Regional Military Prosecutions Western

Counsel for Her Majesty the Queen

Lieutenant(N) S.C. Leonard, Directorate of Defence Counsel Services

Counsel for Corporal AE. Liwyj