Military justice system on trial
Court martial system subject of debate
The Canadian Forces has withdrawn sexual assault charges against two military members, including a senior officer, because of an earlier court ruling that questioned the validity of some aspects of the military justice system.
Military spokesman Maj. Doug Keirstead confirmed that, as a result of a Court Martial Appeal Court of Canada decision in September, prosecutors have withdrawn charges of sexual assault against Lt.-Col. Stephan Popowych and Master Cpl. Maxime Demers.
Demers was charged last year with one count of sexual assault after an alleged incident at a home in Halifax in June 2014. The alleged victim was also a member of the armed forces.
Last year, the Canadian Forces National Investigation Service charged Popowych with one count of sexual assault. The charge related to an alleged assault against a civilian in Kingston, Ont., in 1999 when the accused was a student at the Royal Military College. At the time the charge was laid in 2017, Popowych was an army staff officer with the Directorate of Capability Integration at Defence headquarters in Ottawa.
The decision to withdraw the charges is related to a September 2018 ruling by the military’s appeals court in another sexual assault case. In that case, Master Cpl. Raphael Beaudry of Edmonton had been charged with one count of sexual assault causing bodily harm.
The Charter of Rights and Freedoms says anyone accused of a crime with a maximum sentence of five or more years can request a trial by jury — except in cases involving military law tried before a military tribunal. But a special provision in the National Defence Act, which regulates the Forces, says civil cases such as sexual assault and murder can be considered under military justice even if the alleged offence was not related to an accused’s military service.
As a result, when Beaudry asked that his case be heard by a jury, it was denied and he was found guilty via court martial. But in a majority ruling in September, the Court Martial Appeals Court found that “civil offences are not offences under military law” — meaning Beaudry and others charged with serious Criminal Code offences should be allowed to stand trial by jury.
That ruling has shaken the military justice system, which has now gone to the Supreme Court to resolve the issue.
The Director of Military Prosecutions acknowledged it is possible that some ongoing cases could be affected by the Court Martial Appeal Court’s decision in the Beaudry case, Keirstead said. Military prosecutors are considering all possible options to ensure that any such cases move forward expeditiously and are prosecuted to the fullest extent of the law, he added, although details of those options were not released.
“It is important to note that the prosecution does not consider the Popowych and Demers matters ‘dropped,’ ” Keirstead said. “In both cases, the charges were withdrawn with the caveat that the prosecution reserves the right to reprefer the matter for court martial once the Supreme Court makes a decision on the prosecution’s motion for a stay” in the Beaudry case.
Ottawa lawyer Michel Drapeau, who handles military legal cases, said he expects the Popowych and Demers cases to proceed at some point. But he noted the military justice system only has itself to blame, as legal specialists have been warning about concerns over the constitutionality of the court-martial system for more than a decade.
Instead of dealing with it, the military justice system has resisted change, said Drapeau, a former Canadian Forces colonel. “This was something they knew about and could have fixed but they refused,” said Drapeau. “Now they have their backs up against the wall and are facing the consequences of their decision not to take action.”
The military’s top prosecutor, Col. Bruce MacGregor, has asked the Supreme Court to suspend the Beaudry decision until the top court can hear an appeal. A failure to do so, he added in a motion filed to the top court, could have widespread implications.
“Forty cases currently in the military justice system are affected by this decision, representing over half of our average annual caseload,” MacGregor wrote in his motion requesting a stay.
Allowing the decision to stand before the top court hears the case would force other cases in the system into civilian courts, he added, “creating undesirable delays and jeopardizing the ability to try these cases on their merit.”
IMPORTANT TO NOTE THE PROSECUTION DOES NOT CONSIDER THE ... MATTERS ‘DROPPED.’