Military court ruling to remain in place pending Supreme Court hearing

The Supreme Court of Canada has refused to temporarily suspend a lower court’s bombshell ruling in a sexual-assault case that the military justice system is unconstitutional.

A five-judge panel rejected military prosecutors’ request for a stay on Monday after the prosecution tangled with defence lawyers over whether discipline within the Canadian Forces would suffer if the earlier ruling were allowed to stand.

The case in question dates back to December 2014 when military police charged an Edmontonbased soldier, Master Cpl. Raphael Beaudry, with one count of sexual assault causing bodily harm.

The Charter of Rights and Freedoms says anyone accused of a crime that carries a maximum sentence of five or more years can request a trial by jury — except in cases involving military law tried before military tribunals.

But a special provision in the National Defence Act, which regulates the Forces, says if a serving member is accused of a civilian offence such as sexual assault or murder, the case can be handled under military law even if the alleged offence is not related to the accused’s military service.

When Beaudry asked that his case be heard by a jury, his request was denied and he was found guilty via court martial.

But the Court Martial Appeals Court found in September 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.

Beaudry is far from the first to challenge the constitutionality of the military justice system, but those previous cases had all been rejected by the lower courts.

The Supreme Court is scheduled to hear Beaudry’s case in March. Military prosecutors had asked that it suspend the lower court’s ruling until the top court issues a final decision on the matter.

They told the court 36 cases — including 22 sexual assaults — have been left in limbo as a result of the appeals court ruling.