Supreme Court of Canada
MacKay v. The Queen, [1980] 2 S.C.R. 370
Date: 1980-07-18
[SIN omitted] Private R.C. MacKay, Canadian Forces, Regular Force Appellant;
and
Her Majesty The Queen Respondent.
1980: February 5; 1980: July 18.
Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, McIntyre and Chouinard JJ.
ON APPEAL FROM THE COURT MARTIAL APPEAL COURT
Constitutional law—Court martial—Equality before the law—Military prosecutor rather than Attorney General—Independent and impartial tribunal—Canadian Bill of Rights, ss. 1(a), 1(b), 2(e) and 2(f)—British North America Act, s. 91(7).
The appellant, a member of the Canadian Forces, Regular Force, was tried by a Standing Court Martial on seven charges under s. 120 of the National Defence Act, six of the charges relating to trafficking in a narcotic, contrary to s. 4(1) of the Narcotic Control Act, and one relating to possession of a narcotic, contrary to s. 3 of the Narcotic Control Act. He was found not guilty on one of the trafficking charges and guilty on the other six charges. His sentence was sixty days’ detention. On appeal to the Court Martial Appeal Court, his conviction on one of the trafficking charges was set aside and his conviction on the remaining five charges was affirmed. The trafficking offences of which he remained convicted involved other members of the armed forces and three of these offences took place on army barracks. The possession offence was also committed there.
The Court was asked to answer the following constitutional questions: 1. Are the provisions of the National Defence Act which authorized the trial by service tribunals of military personnel charged with criminal offences committed in Canada, contrary to the Narcotic Control Act or the Criminal Code, inoperative by reason of ss. 1(a), 1(b), 2(e) and 2(f) of the Canadian Bill of Rights? 2. Is the National Defence Act, in as far as it permits criminal proceedings before service tribunals… to be instituted and conducted by military prosecutor and not by the Attorney General of a province or the Attorney General of Canada, ultra vires the Parliament of Canada?
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Held (Laskin C.J. and Estey J. dissenting): The appeal should be dismissed and both questions answered in the negative.
Per Martland, Ritchie, Pigeon, Beetz and Chouinard JJ.: The National Defence Act, pursuant to which the charges were laid in this case, is legislation enacted in fulfillment of the legislative authority assigned to Parliament by s. 91(7) of the B.N.A. Act which provides that “the exclusive Legislative Authority of the Parliament of Canada extends to… Militia, Military and Naval Service, and Defence”. This authority must include the authority to enact legislation for regulation and control of the behaviour and discipline of members of the service, and this in turn includes the making of provision for the establishment of courts to enforce such legislation. Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376, where this Court held that s. 1(b) of the Canadian Bill of Rights does not require that all federal statutes must apply to all individuals in the same manner, is directly contrary to the contention advanced by the appellant under s. 1(b) of the Bill of Rights.
The appellant’s contention that the provision for charging an accused serviceman either before a court martial or a civilian court exposes him to a duality of criminal procedures which is a badge of inequality before the law is untenable. It is to be remembered that under the National Defence Act the jurisdiction of the civil courts is never ousted (s. 61(1)) and that the military law, which stands side by side with the general law of the land, is equally part of the law of the land although limited to members of the armed services. The implementation of s. 120 of the National Defence Act of necessity occasions differences in the treatment of service personnel and civilians, and it is not inconsistent with the concept of equality before the law for Parliament to make a law that, for sound reasons of legislative policy, applies to one class of persons and not to another class. There is no deprivation of human rights in the manner in which the appellant was charged and his trial convened.
The appellant’s submission that he was deprived of a hearing by an independent and impartial tribunal because the president of the standing court martial was a member of the armed forces is equally untenable. There is no evidence to suggest that the president acted in a partial manner or that his appointment resulted or was calculated to result in the appellant being deprived of a trial before an independent and impartial tribunal.
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The first question should therefore be answered in the negative.
With respect to the second question, the power here to designate a federal agent to conduct the prosecution of the offence is one which is properly within federal competence. The issue was settled in the Hauser case, [1979] 1 S.C.R. 984. This question should also be answered in the negative.
Per Dickson and McIntyre JJ.: The National Defence Act has not been declared to be operative against the provisions of the Bill of Rights, whose provisions must therefore be borne in mind in construing the Act.
The appellant’s submission that a trial by court martial offends the Bill of Rights in that it deprives the serviceman of his right to a fair hearing by an independent and impartial tribunal, as provided for in s. 2(f), cannot be accepted. From the earliest times, officers of the armed forces have had this judicial function. Service officers are not less able to adjust their attitudes to meet the duty of impartiality required of them than are those who are appointed to judicial office in the civilian society. Furthermore, the existence of a Court Martial Appeal Court, a professional Court of Appeal with a general appellate jurisdiction over the courts martial, is a significant safeguard.
The appellant’s second point raises the question whether the trial of servicemen by court martial under military law for an offence under the criminal law of Canada deprives the serviceman of equality before the law contrary to the provisions of s. 1 (b) and s. 2 of the Bill of Rights. Judicial construction of the words “equality before the law” has advanced the proposition that legislation passed by Parliament does not offend against the principle of equality before the law if passed in pursuance of a “valid federal objective”. It is incontestable that Parliament has the power to legislate in such a way as to affect one group or class in society as distinct from another without any necessary offence to the Bill of Rights. The question which must be resolved in each case is whether an inequality that may be created by legislation affecting a special class—here the military—is arbitrary, capricious or unneccessary, or whether it is rationally based and acceptable as a necessary variation from the general principle of universal application of law to meet special conditions and to attain a necessary and desirable social objective.
The creation of a body of military law and the tribunals necessary for its administration, involving as a
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necessary incident thereto different treatment at law for servicemen in certain cases from that afforded to civilians, does not by itself constitute a denial of equality before the law. It must not however be forgotten that, since the principle of equality before the law is to be maintained, departures should be countenanced only where necessary for the attainment of desirable social objectives, and then only to the extent necessary in the circumstances to make possible the attainment of such objectives. The provisions of the National Defence Act, in so far as they confer jurisdiction upon courts martial to try servicemen in Canada for offences which are offences under the penal statutes of Canada for which civilians might also be tried, and where the commission and nature of such offences has no necessary connection with the service, are inoperative as being contrary to the Bill of Rights. In the case at bar, the offences are sufficiently connected with the service to come within the jurisdiction of the military courts. Trafficking and possession of narcotics, in a military establishment, can have no other tendency than to attack the standards of discipline and efficiency of the service.
Per Laskin C.J. and Estey J. dissenting: Special treatment and special provision for the regulation of the armed forces in their character as such represents a reasonable classification which, so long as there is no irrelevant discrimination in the regulation, may well be compatible with the Bill of Rights. The contention, here, however, is that in respect of s. 120 of the National Defence Act, there has been a clear departure from an internal military code by the provision for prosecution, through military tribunals, of offences under the ordinary criminal law but without putting the accused members of the armed forces in the same position under that law as are other members of the public when similarly charged.
It is fundamental that when a person, whatever his or her status or occupation, is charged with an offence under the ordinary criminal law and is to be tried under that law and in accordance with its prescriptions, he or she is entitled to be tried before a court of justice, separate from the prosecution and free from any suspicion of influence of or dependency on others. There is nothing in such a case, where the person charged is in the armed forces, that calls for any special skill of a superior officer, as would be the case if a strictly service or discipline offence, relating to military activity, was involved. There has therefore, been a breach of s. 2(f) of the Bill of Rights in that the accused, charged with a criminal offence, was entitled to be tried by an independent and impartial tribunal.
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The appellant is also entitled to succeed on the ground that he was denied equality before the law, contrary to s. 1(b) of the Bill of Rights. There cannot be in this country two such disparate ways of trying offences against the ordinary law, depending on whether the accused is a member of the armed forces or not. In the Drybones case it was Indians and here it is members of the armed forces who were under disabilities; treated differently, in short, from other persons in respect of the application to them of the same law. Section 120 of the National Defence Act must be held to be inoperative in so far as it subjects members of the armed forces to a different and, indeed, more onerous liability for a breach of ordinary law than are other persons in Canada who are also governed by that law.
[Prata v. The Minister of Manpower and Immigration, [1976] 1 S.C.R. 376; R. v. Burnshine, [1975] 1 S.C.R. 693; Curr v. The Queen, [1972] S.C.R. 889; Bliss v. The Attorney General of Canada, [1979] 1 S.C.R. 183; Smythe v. The Queen, [1971] S.C.R. 680; R. v. Court of Sessions. Ex p. Lafleur, [1967] 3 C.C.C. 244; R. v. Hauser, [1979] 1 S.C.R. 984, referred to]
APPEAL from a judgment of the Court Martial Appeal Court varying the judgment of a Standing Court Martial. Appeal dismissed, the Chief Justice and Estey J. dissenting.
B.A. Crane, Q.C., and D.R. Wilson, for the appellant.
T.B. Smith, Q.C., and S.H. Forster, for the respondent.
The reasons of Laskin C.J. and Estey J. were delivered by
THE CHIEF JUSTICE (dissenting)—The appellant is a member of the Canadian armed forces stationed in Victoria, British Columbia. He was tried by a Standing Court Martial on seven charges under s. 120 of the National Defence Act, R.S.C. 1970, c. N-4, as amended, six of the charges relating to trafficking in a narcotic, contrary to s. 4(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1, as amended, and one relating to possession of a narcotic, contrary to s. 3 of the Narcotic Control Act. He was found not guilty on one of the trafficking charges and guilty on the
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other six charges. His sentence was sixty days’ detention. On appeal to the Court Martial Appeal Court, his conviction on one of the trafficking charges was set aside and his conviction on the remaining five charges was affirmed. The trafficking offences of which he remained convicted involved other members of the armed forces and three of these offences took place on army barracks. The possession offence was also committed there.
The single issue in the appeal to this Court, which is here by its leave, is whether the manner of prosecution and trial and the exposure of the accused to conviction under the Narcotic Control Act through s. 120 of the National Defence Act offended s. 2(f) and s. 1(b) of the Canadian Bill of Rights, 1960 (Can.), c. 44 (R.S.C. 1970, Appendix III), in that (1) being charged with a criminal offence (as contrasted with a disciplinary offence under military law) he was not tried by an independent and impartial tribunal, and (2) he was denied equality before the law.
The National Defence Act does not contain any express declaration ousting the application of the Canadian Bill of Rights in conformity with s. 2 of the Canadian Bill of Rights. The operation of the National Defence Act is, hence, subject to the Canadian Bill of Rights, which is stated in s. 5(2) to be applicable in respect of federal legislation and regulations thereunder, whether enacted or passed before or after its in-force date.
Reference to the scheme of the National Defence Act, and to some of its provisions is necessary for a determination of the issues in this appeal. I should say at once that the establishment of a special code of law governing the armed forces in their military character and in relation to military activities and discipline is not challenged in this case. Reference in this respect may be made to ss. 62 to 119 of the National Defence Act. Special treatment and special provision for the regulation of the armed forces in their character as such represents a reasonable classification which, so
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long as there is no irrelevant discrimination in the regulation, may well be compatible with the Canadian Bill of Rights. The contention, here, however, is that in respect of s. 120 of the National Defence Act and of its supporting provisions, there has been a clear departure from an internal military code by the provision for prosecution, through military tribunals, of offences under the ordinary criminal law but without putting the accused members of the armed forces in the same position under that law as are other members of the public when similarly charged.
The National Defence Act deals in a very wide way with what are called “service offences”. The term is defined in s. 2 to mean “an offence under this Act, the Criminal Code or any other Act of the Parliament of Canada, committed by a person while subject to the Code of Service Discipline”. The Code of Service Discipline covers, of course, members of the regular forces and also, in prescribed circumstances, members of the reserve force. It deals, in the main, with disciplinary offences and misconduct connected with military activities but, as the definition above indicates, it also deals with offences punishable by ordinary law and subjects an accused member of the armed forces to trial before a service tribunal for all classes of “service offences”. There is only the exception stated in s. 60 of the Act that “a service tribunal shall not try any person charged with an offence of murder, rape or manslaugher, committed in Canada”.
Although a scale of punishments is fixed for service offences in s. 126 of the Act, nonetheless where the offence is a contravention of the ordinary law, it is the punishment that is fixed by that law that applies. The governing provision is s. 120, headed Offences Punishable by Ordinary law, and so far as material here, it reads as follows:
120. (1) An act or omission
(a) that takes place in Canada and is punishable under Part XII of this Act, the Criminal Code or any other Act of the Parliament of Canada; or
(b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part
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XII of this Act, the Criminal Code or any other Act
of the Parliament of Canada; is an offence under this Part and every person convicted thereof is liable to suffer punishment as provided in subsection (2).
(2) Subject to subsection (3), where a service tribunal convicts a person under subsection (1), the service tribunal shall,
(a) if the conviction was in respect of an offence
(i) committed in Canada, under Part XII of this Act, the Criminal Code or any other Act of the Parliament of Canada and for which a minimum punishment is prescribed, or
(ii) committed outside Canada under section 218 of the Criminal Code,
impose a punishment in accordance with the enactment prescribing the minimum punishment for the offence; or
(b) in any other case,
(i) impose the penalty prescribed for the offence by Part XII of this Act, the Criminal Code or that other Act, or
(ii) impose dismissal with disgrace from Her Majesty’s service or less punishment.
There are some offences included in the category of service offences which are similar to Criminal Code offences but are separately dealt with as, for example, stealing in s. 104 and receiving under s. 105. These do not detract from the embracive character of s. 120 and it may be, although it is unnecessary to decide this here, that there is a choice in charging an accused in such cases either under the Criminal Code or under the particular sections just mentioned.
It is also relevant to the issues herein to note that s. 61 of the National Defence Act states that “nothing in the Code of Service Discipline affects the jurisdiction of any civil court to try a person for an offence triable by that court”. A serviceman who is first tried by a service tribunal (as here, by a Standing Court Martial) is thus exposed to a further trial (whether convicted or acquitted by the service tribunal) subject only to the following punishment qualification set out in s. 61(2) which is in these terms:
61. (1). …
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(2) Where a person, sentenced by a service tribunal in respect of a conviction on a charge of having committed a service offence, is afterwards tried by a civil court for the same offence or for any other offence of which he might have been found guilty on that charge, the civil court shall in awarding punishment take into account any punishment imposed by the service tribunal for the service offence.
However, the converse is not true. If a civil court has acted first against a serviceman then, under s. 56(1) of the National Defence Act, he cannot be tried again by a service tribunal either for the particular offence tried by the civil court or for any included offence.
This brings me to consider the composition of a service tribunal, defined in s. 2 to mean “a court martial or a person presiding at a summary trial”. I leave aside, for the purposes of the present case, any concern with persons presiding at a summary trial. Sections 141 and 142 of the National Defence Act provide for summary trial, in prescribed circumstances, by a commanding officer and by superior commanders, being in the latter case of or above the rank of brigadier general or any officer appointed for that purpose by the Minister of National Defence. Courts martial are of various kinds, e.g., general courts martial, disciplinary courts martial, standing courts martial and special general courts martial. There appears to be concurrent jurisdiction in the various courts martial in respect of “service offences”, but their composition and numbers differ. Only in the case of a trial before a Standing Court Martial or a Special General Court Martial is there a requirement of a legal qualification in the presiding officer, being the sole member in each of these two types of courts martial.
Section 154, dealing with Standing Courts Martial reads as follows:
154. (1) The Governor in Council may establish Standing Courts Martial and each such court martial shall consist of one officer, to be called the president, who is or has been a barrister or advocate of more than three years standing and who shall be appointed by or under the authority of the Minister.
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(2) Subject to any limitations prescribed in regulations, a Standing Court Martial may try any person who under Part IV is liable to be charged, dealt with and tried upon a charge of having committed a service offence, but a Standing Court Martial shall not pass a sentence including any punishment higher in the scale of punishments than imprisonment for less than two years.
In the present case, the charges against the accused were laid by the accused’s commanding officer. The Standing Court Martial was ordered by a senior commander and a member of the armed forces, a Lieutenant-Colonel, was appointed from an approved list as the Standing Court Martial pursuant to s. 154. Both the officer constituting the Standing Court Martial and the prosecutor were part of the office of the Judge Advocate General. In short, the accused, who was tried on charges under a general federal statute, the Narcotic Control Act, was in the hands of his military superiors in respect of the charges, the prosecution and the tribunal by which he was tried. It is true that the Court Martial Appeal Court, consisting under s. 201 of the National Defence Act, of judges of the Federal Court of Canada and additional superior court judges appointed by the Governor in Council, exhibits independence and the appearance of independence in its composition but the same cannot be said of the constitution of a Standing Court Martial when trying an accused for breach of the ordinary criminal law. Needless to say, there is no impugning of the integrity of the presiding officer; it is just that he is not suited, by virtue of his close involvement with the prosecution and with the entire military establishment, to conduct a trial on charges of a breach of the ordinary criminal law. It would be different if he were concerned with a charge of breach of military discipline, something that was particularly associated with an accused’s membership in the armed forces. The fact that “service offences” are so broadly defined as to include breaches of the ordinary law does not, in my opinion, make a Standing Court Marital the equivalent of an independently appointed judicial officer or other than an ad hoc appointee, having no tenure and coming from the very special society of which both the accused, his prosecutor and his “judge” are
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members: cf. Committee for Justice and Liberty et al. v. National Energy Board et al.
In my opinion, it is fundamental that when a person, any person, whatever his or her status or occupation, is charged with an offence under the ordinary criminal law and is to be tried under that law and in accordance with its prescriptions, he or she is entitled to be tried before a court of justice, separate from the prosecution and free from any suspicion of influence of or dependency on others. There is nothing in such a case, where the person charged is in the armed forces, that calls for any special knowledge or special skill of a superior officer, as would be the case if a strictly service or discipline offence, relating to military activity, was involved. It follows that there has been a breach of s. 2(f) of the Canadian Bill of Rights in that the accused, charged with a criminal offence, was entitled to be tried by an independent and impartial tribunal. Section 2(f) provides that no law of Canada shall be construed or applied so as to
deprive a person charged with a criminal offence of the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause.
In short, I regard the provisions of the National Defence Act as inoperative in so far as they provide for the trial of offences against the ordinary law by service tribunals.
I am of the opinion that the appellant is also entitled to succeed in this appeal on the second ground taken by him, namely, that he was denied equality before the law, contrary to s. 1(b) of the Canadian Bill of Rights. I cannot conceive that there can be in this country two such disparate ways of trying offences against the ordinary law, depending on whether the accused is a member of the armed forces or is not. Nor does it appear to me to be sustainable, in the face of the Canadian Bill of Rights, that an accused is exposed to trial before the civil courts for an offence of which he
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was first tried by a service tribunal. A person charged with a criminal offence under the ordinary law, be it the Criminal Code or some other federal penal statute such as the Narcotic Control Act, has the protection of the procedures for trial prescribed by the Criminal Code, subject to such special provisions as may be part of the federal penal statute under which he or she is charged and tried. Such an accused comes before an independent and impartial judge; he may be able to elect trial by jury and rely on other prescriptions, such as having a preliminary enquiry, the right to appeal sentence (not open before the Martial Appeal Court: see ss. 183, 200(1), 202(3)), or being able to seek an absolute discharge or a suspended sentence.
The present case is, in my opinion, on all fours in principle with the judgment of this Court in The Queen v. Drybones, and is also nourished by what this Court said in Curr v. The Queen, and in the majority judgment in Attorney-General of Canada v. Lavell.
Drybones was a case where under s. 94(b) of the Indian Act, R.S.C. 1952, c. 149, an Indian was liable to prosecution and conviction for being intoxicated off a reserve, even in his own home, whereas other persons were not so liable unless the intoxication occurred in a public place. The position, as it was put by Ritchie J., who delivered the majority judgment of this Court, was as follows (at p. 290):
The result is that an Indian who is intoxicated in his own home “off a reserve” is guilty of an offence and subject to a minimum fine of not less than $10 or a term of imprisonment not exceeding 3 months or both, whereas all other citizens in the Territories may, if they see fit, become intoxicated otherwise than in a public place without committing any offence at all. And even if any such other citizen is convicted of being intoxicated in a public place, the only penalty provided by the Ordinance is “a fine not exceeding $50 or… imprisonment for a
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term not exceeding 30 days or… both fine and imprisonment.”
In Drybones it was Indians and here it is members of the armed forces who were under disabilities; treated differently, in short, from other persons in respect of the application to them of the same law. Ritchie J., in his reasons said plainly enough that the Canadian Bill of Rights was more than an interpretation statute (whose force would be spent once it was evident that federal legislation could not be construed compatibly with the Canadian Bill of Rights); rather, it required not only construction but application to ensure conformity with its prescriptions and it rendered the federal legislation inoperative if and to the extent to which there was no conformity. He rejected the “construction” approach which had been adopted by the British Columbia Court of Appeal in Regina v. Gonzales, saying this (at pp. 294-5):
It seems to me that a more realistic meaning must be given to the words in question and they afford, in my view, the clearest indication that s. 2 is intended to mean and does mean that if a law of Canada cannot be “sensibly construed and applied” so that it does not abrogate, abridge or infringe one of the rights and freedoms recognized and declared by the Bill, then such law is inoperative “unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights”.
I think a declaration by the courts that a section or portion of a section of a statute is inoperative is to be distinguished from the repeal of such a section and is to be confined to the particular circumstances of the case in which the declaration is made. The situation appears to me to be somewhat analogous to a case where valid provincial legislation in an otherwise unoccupied field ceases to be operative by reason of conflicting federal legislation.
Then, addressing himself to the question whether there was, in the case before him, an abrogation or abridgement of “the right of the individual to equality before the law and the protection of the law”, he expressed his position and that of this Court as follows: (at p. 297)
I think that the word “law” as used in s. 1(b) of the Bill of Rights is to be construed as meaning “the law of
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Canada” as defined in s. 5(2) (i.e. Acts of the Parliament of Canada and any orders, rules or regulations thereunder) and without attempting any exhaustive definition of “equality before the law” I think that s. 1(b) means at least that no individual or group of individuals is to be treated more harshly than another under that law, and I am therefore of opinion that an individual is denied equality before the law if it is made an offence punishable at law, on account of his race, for him to do something which his fellow Canadians are free to do without having committed any offence or having been made subject to any penalty.
It is only necessary for the purpose of deciding this case for me to say that in my opinion s. 94(b) of the Indian Act is a law of Canada which creates such an offence and that it can only be construed in such manner that its application would operate so as to abrogate, abridge or infringe one of the rights declared and recognized by the Bill of Rights. For the reasons which I have indicated, I am therefore of opinion that s. 94(b) is inoperative.
And he added, by the way of postscript after referring to the dissenting reasons of Chief Justice Cartwright and Justice Pigeon, the following (at p. 298):
It may well be that the implementation of the Canadian Bill of Rights by the courts can give rise to great difficulties, but in my view full effect must be given to the terms of s. 2 thereof.
The present case discloses laws of Canada which abrogate, abridge and infringe the right of an individual Indian to equality before the law and in my opinion if those laws are to be applied in accordance with the express language used by Parliament in s. 2 of the Bill of Rights, then s. 94(b) of the Indian Act must be declared to be inoperative.
In Curr v. The Queen, supra, this Court was concerned, inter alia, with the relationship between ss. 1 and 2 of the Canadian Bill of Rights, a matter that had also engaged Ritchie J. in the Drybones case. In Curr, as in Drybones, the Court determined that s. 2 gave operative effect to the human rights and fundamental freedoms specified in s. 1 as well as to the additional protections listed in s. 2. The two sections read:
1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national
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origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
(c) freedom of religion;
(d) freedom of speech;
(e) freedom of assembly and association; and
(f) freedom of the press.
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to [then follow paras, (a) to (g). I have already quoted para. (f) which is relevant to the first point taken in this appeal.]
The majority judgment in Curr contains the following passage at pp. 896-897 which I reproduce here:
In considering the reach of s. 1(a) and s. 1(b), and, indeed, of s. 1 as a whole, I would observe, first, that the section is given its controlling force over federal law by its referential incorporation into s. 2; and, second, that I do not read it as making the existence of any of the forms of prohibited discrimination a sine qua non of its operation. Rather, the prohibited discrimination is an additional lever to which federal legislation must respond. Putting the matter another way, federal legislation which does not offend s. 1 in respect of any of the prohibited kinds of discrimination may nonetheless be offensive to s. 1 if it is violative of what is specified in any of the clauses (a) to (f) of s. 1. It is, a fortiori, offensive if there is discrimination by reason of race so as to deny equality before the law. That is what this Court decided in Regina v. Drybones and I need not say no more on this point.
It is, therefore, not an answer to reliance by the appellant on s. 1(a) and s. 1(b) of the Canadian Bill of Rights that s. 223 does not discriminate against any person by reason of race, national origin, colour, religion or sex. The absence of such discrimination still leaves open the question whether s. 223 can be construed and applied without abrogating, abridging or infringing the
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rights of the individual listed in s. 1(a) and s. 1(b). What the appellant pointed to in s. 1 (a) was the guarantee of “due process of law”, and his contention under s. 1 (b) was that s. 223 denied him “the protection of the law”. I shall deal with these submissions in turn.
In the Lavell case, Ritchie J. who delivered the majority judgment referred to the quoted passage from the Curr case in these words: (at pp. 1363-1364)
My understanding of this passage is that the effect of s. 1 of the Bill of Rights is to guarantee to all Canadians the rights specified in paragraphs (a) to (f) of that section, irrespective of race, national origin, colour or sex. This interpretation appears to me to be borne out by the French version which reads:
1. Il est par les présentes reconnu et déclaré que les droits de l’homme et les libertés fondamentales ci-après énoncés ont existé et continueront à exister pour tout individu au Canada quels que soient sa race, son origine nationale, sa couleur, sa religion ou son sexe:
…
It was stressed on behalf of the respondents that the provisions of s. 12(1)(b) of the Indian Act constituted “discrimination by reason of sex” and that the section could be declared inoperative on this ground alone even if such discrimination did not result in the infringement of any of the rights and freedoms specifically guaranteed by s. 1 of the Bill.
I can find no support for such a contention in the Curr case in which, in any event, no question of any kind of discrimination was either directly or indirectly involved. My own understanding of the passage which I have quoted from that case was that it recognized the fact that the primary concern evidenced by the first two sections of the Bill of Rights is to ensure that the rights and freedoms thereby recognized and declared shall continue to exist for all Canadians, and it follows, in my view, that those sections cannot be invoked unless one of the enumerated rights and freedoms has been denied to an individual Canadian or group of Canadians. Section 2 of the Bill of Rights provides for the manner in which the rights and freedoms which are recognized and declared by s. 1 are to be enforced and the effect of this section is that every law of Canada shall “be so construed and applied as not to abrogate, abridge or infringe or authorize the abrogation, abridgment or infringement of any of the rights and freedoms herein recognized and declared…” (i.e. by s. 1). There is no
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language anywhere in the Bill of Rights stipulating that the laws of Canada are to be construed without discrimination unless that discrimination involves the denial of one of the guaranteed rights and freedoms, but when, as in the case of The Queen v. Drybones, supra, denial of one of the enumerated rights is occasioned by reason of discrimination, then, as Mr. Justice Laskin has said, the discrimination affords an “additional lever to which federal legislation must respond.”
In view of the foregoing observations by this Court in the Curr and Lavell cases in their bearing on the Drybones case, it is plain to me that unless the Drybones case is to be overruled, its principle must be given effect here. The result is that s. 120 of the National Defence Act must be held to be inoperative in so far as it subjects members of the armed forces to a different and, indeed, more onerous liability for a breach of the ordinary law as applicable to other persons in Canada who are also governed by that law.
I do not see anything in the judgment of the Federal Court of Appeal in Praia v. Minister of Manpower and Immigration, or in the judgment of this Court in The Queen v. Burnshine, that affects my conclusion. Prata involved simply an application of provisions of the Immigration Appeal Board Act, R.S.C. 1970, c. I-3, limiting the discretion and power of the Board to stay an order of deportation where a certificate is filed by the Minister and the Solicitor General with the Board stating that by reason of security or intelligence reports it would be against the national interest for the Board to stay deportation. Jackett C.J. saw no abrogation or abridgment of “equality before the law” under s. 1(b) of the Canadian Bill of Rights in the provision made for the certificate of the two Ministers. This was not a case of an irrelevant discrimination or of an unreasonable classification but rather a situation comporting with the proper administration of immigration policy. Although Thurlow J. (as he then was) dissented on the point, I find Jackett C.J.’s
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approach to be more cogent.
Prata came to this Court after it had decided The Queen v. Burnshine: see [1976] 1 S.C.R. 376. This Court sustained Praia on the Canadian Bill of Rights point for the reasons given by Jackett C.J. It also adverted to what was said by the majority in the Burnshine case, namely, that “legislation dealing with a particular class of people is valid if it is enacted for the purpose of achieving a valid federal objective” (at p. 382 of [1976] 1 S.C.R.). I take it that “valid” as first used in this quoted sentence refers to operative effect since there was no violation of the Canadian Bill of Rights, nor was constitutionality in issue, as might be suggested by the phrase “valid federal objective”. The issue in the Burnshine case is far removed from that in the present case. There the question was whether a provision of the Prisons and Reformatories Act, R.S.C. 1970, c. P-21, denied “equality before the law” when it prescribed different punishments for young offenders in a specified age group and in a specified area (British Columbia) than for young offenders in another age group or in another area of Canada. The British Columbia Court of Appeal concluded that the Drybones case applied but this application was rejected by the majority in this Court. Although the operation of the provision was sustained on the ground that there was a valid federal objective involved, namely, reformation rather than harsher treatment (harsher treatment being involved in Drybones and, in my opinion, in the present case), I understand this to mean not that there was any doubt about the constitutional validity of the provision in question, but that it was a reasonable way of classifying young offenders. Burnshine related to legislation which was considered to have an internal integrity, not requiring the kind of segmentation that was reflected in the facts of the Drybones case and is found in s. 120 of the National Defence Act in the present case.
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The appellant is thus entitled to succeed in this appeal on both of the two grounds that I have canvassed, although success on either ground would be enough to maintain the appeal. Accordingly, I would allow the appeal, set aside the decisions of the Court Martial Appeal Court and of the Standing Court Martial and quash the convictions.
The judgment of Martland, Ritchie, Pigeon, Beetz and Chouinard JJ. was delivered by
RITCHIE J.—This is an appeal brought with leave of this Court from a judgment delivered by Mr. Justice Pennell on behalf of the Court Martial Appeal Court of Canada, dismissing an appeal from the appellant’s conviction of five of the six offences of which he had been convicted at a Standing Court Martial held at Esquimalt, B.C.
Four of the offences in question are for trafficking in narcotics contrary to s. 4(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1, whereas the fifth is for possession of a narcotic contrary to s. 3 of that Act. The appellant is a member of the Canadian Forces, Regular Force, and all of the offences except one are alleged to have been committed at a Canadian Forces base. The charges are laid under s. 120 of the National Defence Act, R.S.C. 1970, c. N-4, which reads in part as follows:
120. (1) An act or omission
(a) that takes place in Canada and is punishable under Part XII of this Act, the Criminal Code or any other Act of the Parliament of Canada; or
(b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part XII of this Act, the Criminal Code or any other Act of the Parliament of Canada;
is an offence under this Part and every person convicted thereof is liable to suffer punishment as provided in subsection (2).
(2) Subject to subsection (3), where a service tribunal convicts a person under subsection (1), the service tribunal shall,
(a) if the conviction was in respect of an offence
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(i) committed in Canada, under Part XII of this Act, the Criminal Code or any other Act of the Parliament of Canada and for which a minimum punishment is prescribed, or
(ii) committed outside Canada under section 218 of the Criminal Code,
impose a punishment in accordance with the enactment prescribing the minimum punishment for the offence; or
(b) in any other case,
(i) impose the penalty prescribed for the offence in Part XII of this Act, the Criminal Code or that other Act, or
(ii) impose dismissal with disgrace from Her Majesty’s service or less punishment.
I have had the advantage of reading the reasons for judgment prepared for delivery by the Chief Justice in which he has summarized many of the circumstances giving rise to this appeal and I take note of the significance to be attached to the “constitutional questions” which he has posed and caused to be distributed in conformity with Rule 17 of the Rules of this Court. Those questions read as follows:
1. Are the provisions of the National Defence Act which authorized the trial by service tribunals of military personnel charged with criminal offences committed in Canada contrary to the Narcotic Control Act or the Criminal Code inoperative by reason of Section 1(a), 1 (b), 2(e) and 2(f) of the Canadian Bill of Rights!
2. Is the National Defence Act in as far as it permits criminal proceedings before service tribunals for offences committed in Canada contrary to the Narcotic Control Act or the Criminal Code to be instituted and conducted by military prosecutor and not by the Attorney General of a province or the Attorney General of Canada, ultra vires the Parliament of Canada?
The relevant provisions of the Canadian Bill of Rights (hereinafter referred to as the “Bill of Rights”) read as follows:
1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right
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not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law; …
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and. declared, and in particular, no law of Canada shall be construed or applied so as to…
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; or…
The main contention of the appellant for reliance on s. 1(b) was, as I understood it, directed to a submission that the provisions of the National Defence Act deprived the appellant of his right to equality before the law which is guaranteed by that section in that he is exposed to trial in a different court (i.e. a court martial) from other citizens. In considering this and the other submissions made by the appellant, I think it should first be observed that the National Defence Act, pursuant to which the charges were laid in this case, is legislation enacted in fulfilment of the legislative obligation assigned to Parliament by s. 91(7) of the British North America Act which provides that:
…the exclusive Legislative Authority of the Parliament of Canada extends to…
7. Militia, Military and Naval Service, and Defence.
This authority must, in my opinion, include the authority to enact legislation for regulation and control of the behaviour and discipline of members of the services and this in turn includes the making of provision for the establishment of courts to enforce such legislation.
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This is obviously legislation enacted for the purpose of achieving a valid federal objective and it deals with a particular class of individuals who are members of the services.
This appears to me to be a situation to which the language used by Mr. Justice Martland, speaking for the Court in Prata v. The Minister of Manpower and Immigration, at p. 382, is directly applicable. He there said:
This Court has held that s. 1(b) of the Canadian Bill of Rights does not require that all federal statutes must apply to all individuals in the same manner. Legislation dealing with a particular class of people is valid if it is enacted for the purpose of achieving a valid federal objective.
The case of Prata, read in conjunction with that of The Queen v. Burnshine is, in my opinion, with all respect for those who may hold a different view, directly contrary to the contention advanced by the appellant under s. 1(b) of the Bill of Rights in this case.
It is, however, contended on behalf of the appellant that the provision for an accused serviceman being charged either before a court martial or a civilian court exposes him to a duality of criminal procedures which is a badge of inequality before the law. It is to be remembered however in considering all the submissions made on behalf of the appellant that in the administration of the Code of Service Discipline under the National Defence Act (including s. 120) the jurisdiction of the civil courts is never ousted and the following provision is made in s. 61 of that Act:
61. (1) Nothing in the Code of Service Discipline affects the jurisdiction of any civil court to try a person for any offence triable by that court.
This is merely a statutory recognition of the long accepted principle described by Dicey as “the fixed doctrine of English law that a soldier though a member of a standing army, is in England subject to all the duties and liabilities of an ordinary citizen”. The position of the two systems of law was described by Cattanach J. in a well-considered
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judgment rendered on an application for prohibition brought before him during the early stages of the present case. The learned judge there said:
The military law, which stands side by side with the general law of the land, is equally part of the law of the land but is limited to members of the armed services and other persons who are subject to that law.
The degree to which Parliament has provided for the two systems of law to operate concurrently is demonstrated by the provisions of s. 129 of the National Defence Act which read:
129. All rules and principles from time to time followed in the civil courts in proceedings under the Criminal Code that would render any circumstances a justification or excuse for any act or omission or a defence to any charge, are applicable to any defence to a charge under the Code of Service Discipline, except in so far as such rules and principles are altered by or are inconsistent with the Act.
The effect of s. 120 of the National Defence Act is to import the provisions of that Act concerning trial, punishment and discipline so as to make them apply to the trial of offences under the Criminal Code when tried by court martial and the implementation of that legislation of necessity occasions differences in the treatment of service personnel and civilians in regard to procedure, the rules of evidence and other matters, but such legislation must be read in light of what was said in this Court in the cases of Curr v. The Queen, Bliss v. The Attorney General of Canada; The Queen v. Burnshine, and Prata v. The Minister of Manpower and Immigration, supra.
The case of Curr was referred to in the judgment of the full Court in Bliss and the Attorney General of Canada, supra, at p. 193, in the following terms:
In this regard, the following passage which is also found in the reasons for judgment of the present Chief Justice in Curr v. The Queen, supra, although it is directed to the effect of the “due process” provision of s. 1(a) of the Bill of Rights, in my opinion applies with
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equal force in considering whether s. 1(b) renders the impugned section inoperative. He there said at p. 899:
…compelling reasons ought to be advanced to justify the Court in this case to employ a statutory (as contrasted with a constitutional) jurisdiction to deny operative effect to a substantive measure duly enacted by a Parliament constitutionally competent to do so, and exercising its powers in accordance with the tenets of responsible government, which underlie the discharge of legislative authority under the British North America Act.
There can be no doubt that the National Defence Act was enacted by Parliament “constitutionally competent to do so and exercising its powers in accordance with the tenets of responsible government”.
In the case of Burnshine, Mr. Justice Martland, speaking for the majority of this Court at p. 701, referred with approval to what had been said by Jackett C.J. in the Federal Court in the Prata case, at p. 473 where he said:
It is a novel thought to me that it is inconsistent with the concept of equality before the law for Parliament to make a law that, for sound reasons of legislative policy, applies to one class of persons and not to another class. As it seems to me, it is of the essence of sound legislation that law be so tailored as to be applicable to such classes of persons and in such circumstances as are best calculated to achieve the social, economic or other national objectives that have been adopted by Parliament.
Burnshine was a case concerning the validity of legislation providing for the imposition of certain sentences which only apply to offenders in a particular age group and to a particular area. In the same case, Mr. Justice Martland, speaking of the allegedly offensive legislation, had this to say:
In my opinion, in order to succeed in the present case, it would be necessary for the respondent, at least, to satisfy this Court that, in enacting s. 150, Parliament was not seeking to achieve a valid federal objective. This was not established or sought to be established.
It is equally true in the present case that no effort was made or indeed could have been made
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to demonstrate that Parliament was not seeking to achieve a valid federal objective.
In the present case the decision that the offences alleged against the appellant should be tried by court martial was made by the commander of the mobile command in which he was serving, acting under the authority of the Minister of National Defence, and the contention that this procedure deprived the appellant of his right to equality before the law and protection of the law as guaranteed by the Bill of Rights appears to me to be answered in the case of Smythe v. The Queen, where the Chief Justice of this Court adopted the following statement made by Mr. Justice Montgomery in the case of R. v. Court of Sessions, Ex p. Lafleur, at p. 248, where he said in part:
I cannot conceive of a system of enforcing the law where one in authority is not called upon to decide whether or not a person should be prosecuted for an alleged offence. Inevitably there will be cases where one man is prosecuted where another man perhaps equally guilty goes free. A single act, or series of acts, may render a person liable to prosecution in more than one charge and someone must decide what charges are to be made. If an authority such as the Attorney General can have the right to decide whether or not a person should be prosecuted, surely he may, if authorized by statute, have the right to decide what form the prosecution shall take.
In my view, in this context the Minister of National Defence stands in the place of the Attorney General, and applying the principle demonstrated by the Smythe case, I can find no deprival of human rights in the manner in which the appellant was charged and his trial convened.
It was, however, seriously contended that the National Defence Act was inoperative as contravening the provisions of s. 2(f) of the Bill of Rights in so far as that section provides that no law of Canada shall be construed so as to deprive a person charged with a criminal offence of the right to “a fair and public hearing by an independent and impartial tribunal”.
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The complaint in this regard centred on the submission that the appellant was deprived of a hearing by an independent and impartial tribunal because the president of the standing court martial was unsuitable for that task as he was a member of the Armed Forces albeit of the Judge Advocate General’s Branch.
It should I think be observed that the Court which tried the appellant was established by the Governor in Council (s. 154(1)) and the president, who was appointed by the Minister of National Defence, was an officer whose rank indicates that he had had some years of military service and whose position with the branch of the Judge Advocate General bespeaks familiarity with military law. An officer such as this whose occupation is closely associated with the administration of the law under the National Defence Act and whose career in the army must have made him familiar with what service life entails would, with all respect to those who hold a different view, appear to me to be a more suitable candidate for president of a court martial than a barrister or a judge who has spent his working life in the practice of non‑military law. There is no evidence whatever in the record of the trial to suggest that the president acted in anything but an independent and impartial manner or that he was otherwise unfitted for the task to which he was appointed.
The defending officer, who was a civilian barrister, provided a vigorous defence in four Courts and it is worthy of note that he had made the following statement at the outset of the proceedings:
First, I would like to point out for the record Mr. President, that neither I or the accused have any personal objection to you either because of your education or qualifications or ability or judgment.
I can find no support in the evidence for the contention that the appointment of the president of the Court resulted or was calculated to result in the appellant being deprived of a trial before an independent and impartial tribunal.
It will be seen from the above that I would answer the first question posed by the Chief Justice in the negative.
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The second question, as posed by the Chief Justice, asks whether the proceedings here in question can be conducted by a military prosecutor and not the Attorney General of a province or the Attorney General of Canada. As the issue is framed, it raises a question as to the constitutional competence of Parliament to designate a military officer as prosecutor for offences against the code of Service Discipline under the National Defence Act, even though those offences are ones which, if committed by a civilian, would come under the purview of the Criminal Code or the Narcotic Control Act. A similar issue was raised recently in this Court in The Queen v. Hauser. There, the question was whether it was competent for Parliament to allow a federal agent to conduct the proceedings in respect of violations of any act of Parliament other than the Criminal Code, and specifically, the Narcotic Control Act, to the exclusion of the provincial Attorney General. This Court held that it was competent for Parliament to do so, and Pigeon J. states at p. 992:
In accordance with this principle I will endeavour to express an opinion on the constitutional question without going any further than necessary. As worded, it does not put in issue what counsel for the appellant called the “broad proposition”, namely, the assertion of complete federal legislative authority over the conduct of all criminal proceedings rather than only over criminal proceedings in respect of a violation or conspiracy to violate a federal enactment other than the Criminal Code. From a constitutional point of view, the distinction properly should be between enactments founded on the criminal law power and other enactments as was pointed out on behalf of the three provinces which accept that, in legislating under any other head of power, the federal Parliament can completely provide for prosecutions by federal officials, although they deny such power for the enforcement of criminal law strictly so called. (The italics are my own.)
These comments determine the issue here in question. The only means by which the provisions of the National Defence Act in regards to this question could be ultra vires Parliament would be if the power interfered with the power of the province to legislate in regard to matters under s. 92(14) of the B.N.A. Act. As Pigeon J. points out
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in Hauser, the provincial power regarding the administration of justice in criminal matters applies only where the subject-matter involved falls strictly within the criminal law power itself. As I have pointed out above in these reasons, the power exercised under the National Defence Act establishing service offences, service tribunals, and service prosecuting officers as regards service personnel derives its force from the defence power of s. 91(7). In this regard, I am in full agreement with the comments of Cattanach. J., in ruling on one of the applications below in this case, in [1978] 1 F.C. 233, at p. 244:
Neither can there be any question whatsoever that Parliament in enacting the National Defence Act and therein providing a code of discipline applicable exclusively to members of the armed forces and providing a system of courts to enforce that code was enacting legislation within the legislative authority bestowed on Parliament by section 91(7) of The British North America Act, 1867 the class of subject being “Militia, Military and Naval Service, and Defence”. As I have pointed out above for there to be an efficient defence it is axiomatic that there must be discipline in the forces and that that discipline must be enforceable within the service. The legislative purpose is abundantly clear.
The power to allow prosecutions by military authorities is a necessary aspect of dealing with service offences, which have always been considered part of military law. The legislation here derives its force from s. 91(7) and therefore there is no possible application for provincial powers under s. 91(24). The legislation is therefore exclusive to the power of Parliament, even for those matters which would normally fall under the Criminal Code, or the Narcotic Control Act but which, through the legislation and the application of military law properly fall into the category of service offences.
Even if the matters were not service offences, the power here to designate a federal agent to conduct the prosecution of the offence is one which is properly within federal competence. The offences here involve narcotics, and this Court held
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in Hauser, supra, that it is within federal competence to allow a federal agent to prosecute such matters.
The necessity of recognizing that a separate code of law administered within the services is an essential ingredient of service life has been appreciated since the earliest days, and in my view the administration of the National Defence Act must be considered in light of the history and development of that code. Some indication of the antiquity of the practice of dealing separately with service personnel by court martial can be seen in the following excerpt from Holdsworth’s, A History of English Law, vol. X, at pp. 709 and 710, where he is discussing the confusion which at one time existed between the use of the terms “martial law” and “military law”. He there said:
The chequered history of the law which has governed the discipline of the army sufficiently accounts for the vagueness of the term “martial law,” and the uncertainty as to the legal force of a proclamation of martial law. The court of the Constable and the Marshal, which had administered martial law to the army in the Middle Ages, had long been obsolete in the eighteenth century; and jurisdiction over soldiers was exercised by courts martial composed of officers of the army, acting under the statutory powers conferred by the annual Mutiny Act. The law which these courts martial administered was then called martial law—the modern term, military law, had not as yet been invented. Martial law- in this sense of the word, was as definite a body of law as it is today; and its ambit was equally definite. It applied only to soldiers in the regular army and other persons defined by the Mutiny Act. The courts martial which administered this body of law, and the law which they administered, were quite distinct from the court of the Constable and the Marshal and the law which it administered.
In England the Code of Service Discipline became embodied in the Army Act which was recognized as a governing authority in the first Militia Act of Canada—An Act respecting the Militia and Defence of the Dominion of Canada, 1868 (Can.), c. 40, and it was specifically made applicable to the Canadian militia by the Militia Act, R.S.C. 1927, c. 132, and Canadian army personnel were largely governed by the Army Act of the United Kingdom and the King’s Regulations
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made thereunder until after the end of the last world war when the National Defence Act, 1950 (Can.), c. 43, was enacted. Parliament had, however, already passed the Naval Service Act in 1944 containing a separate code for the navy and during the war years modifications were made in the application of the laws of the United Kingdom to the Royal Canadian Air Force.
It was against this background that the authorities were required to develop an independent Canadian statute applicable to all services and the resultant National Defence Act, 1950, was the product of mature consideration based on long experience both in war and in peace.
In the course of the reasons for judgment delivered by Mr. Justice Cattanach to which I have already referred, he had occasion to say, at p. 235 of the Report:
Military law and its administration in armed forces has subsisted since time immemorial and it has subsisted in Canada since the first Canadian military force was organized one year after Confederation. However it is a fundamental constitutional principle that a soldier does not, by virtue of joining the armed forces and the consequent military character he assumes, escape the jurisdiction of the civil courts of this country. Accordingly the ordinary law that applies to all citizens also applies to members of the armed forces but by joining the armed forces those members subject themselves to additional legal liabilities, disabilities and rights, that is to say to Canadian military law.
Without a code of service discipline the armed forces could not discharge the function for which they were created.
The same learned judge later made the following comment:
Many offences which are punishable under civil law take on a much more serious connotation as a service offence and as such warrant more severe punishment. Examples of such are manifold such as theft from a comrade. In the service that is more reprehensible since it detracts from the essential esprit de corps, mutual respect and trust in comrades and the exigencies of the barrack room life style. Again for a citizen to strike another a blow is assault punishable as such but for a
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soldier to strike a superior officer is much more serious detracting from discipline and in some circumstances may amount to mutiny. The converse, that is for an officer to strike a soldier is also a serious service offence. In civilian life it is the right of the citizen to refuse to work but for a soldier to do so is mutiny, a most serious offence, in some instances punishable by death. Similarly a citizen may leave his employment at any time and the only liability he may incur is for breach of contract but for a soldier to do so is the serious offence of absence without leave and if he does not intend to return the offence is desertion.
It may be thought also that the offence of trafficking in narcotics takes on a special character when it is committed, as it was here, at an armed forces base where service personnel are equipped with firearms.
When the National Defence Act is considered as a whole it will be seen that it encompasses the rules of discipline necessary to the maintenance of morale and efficiency among troops in training and at the same time envisages conditions under which service offences may be committed outside of Canada by service personnel stationed abroad. The Act also reflects the rules governing members of the armed services in the discharge of the duties required of them when acting in Aid of the Civil Power (s. 232 to s. 242) whereunder they may be required to act on short notice in the controlling of riots at the behest of a provincial attorney general. In my view these are some of the factors which make it apparent that a separate code of discipline administered within the services is an essential ingredient of service life.
It will therefore be seen, as I have said, that the National Defence Act is dealing with a particular class of individuals and, as it is enacted for the purpose of achieving a valid federal objective, the provisions of s.1(b) of the Bill of Rights do not require that its provisions contain the same requirements as all other federal legislation. (See Prata v. The Minister of Manpower and Immigration, supra).
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The submissions of the appellant to the effect that a fair trial by an impartial tribunal is denied to service personnel under the National Defence Act is indeed difficult to sustain in light of the provisions to which I have referred by which the alleged infringement of a serviceman’s rights can be made the subject of review by a court of appeal composed of federally appointed judges who are not members of the services and from whose deliberations an appeal lies to this Court.
For all these reasons I would dismiss this appeal and direct that the matter be disposed of in the manner proposed by the Court Martial Appeal Court of Canada.
The reasons of Dickson and McIntyre JJ. were delivered by
MCINTYRE J.—I have read the reasons for judgment prepared by the Chief Justice and by Ritchie J. With the greatest of deference to my brothers, while I am in agreement with the result reached by Ritchie J., I arrive at that conclusion with different considerations in mind and I feel obliged to set down my separate views upon the questions raised in this appeal. The Chief Justice has set out the facts with sufficient detail for my purposes and he has made extensive reference to the statutory provisions involved. I will make only such further reference to the National Defence Act as may be necessary to illustrate certain points in these reasons.
The case, as originally presented to this Court in the appellant’s factum, raised two principal questions. They were set out in these words:
1. Whether the provisions of the National Defence Act which authorize the trial by a service tribunal of military personnel charged with criminal offences committed in Canada contrary to the Narcotic Control Act or the Criminal Code are inoperable by reason of the Canadian Bill of Rights.
2. Is the National Defence Act, insofar as it permits criminal proceedings before service tribunals for offences committed in Canada contrary to the Narcotic Control Act or the Criminal Code to be instituted and conducted by a military prosecutor and not by the
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Attorney General of a province or the Attorney General of Canada, ultra vires the Parliament of Canada?
In argument the second issue was not raised for, as I understand the matter, it was considered by counsel for the appellant that this point was concluded against his client by the judgment of this Court in The Queen v. Hauser. Argument was thus confined to the first point and was presented under two heads. It was argued that the provisions of the National Defence Act which provided for the trial of the appellant upon offences under the Narcotic Control Act, offended the Canadian Bill of Rights in that they deprived the appellant of a right to be tried by an independent and impartial tribunal (s. 2(f)) and they deprived the appellant of equality before the law (s. 1(b)).
Since very early times it has been recognized in England and in Western European countries which have passed their legal traditions and principles to North America that the special situation created by the presence in society of an armed military force, taken with the special need for the maintenance of efficiency and discipline in that force, has made it necessary to develop a separate body of law which has become known as military law. The development of this body of law included, sometimes in varying degree but always clearly recognized, a judicial role for the officers of the military force concerned. It was inevitable that the question of the relationship of military law to the ordinary civil law would arise. It was also inevitable that the question of the relationship to the civil law of those also subject to the military law would have to be faced. Holdsworth, in his History of English Law, 7th rev. ed., 1966, vol. 10, p. 382, says that Blackstone did not deal with these questions but “they were beginning to be raised at or shortly after the time when he wrote in”. These questions have been in great part resolved. As a general proposition in England and in Canada, a member of the armed services becomes upon enlistment subject to military law but remains subject to the general civil law. His entry into service adds an obligation in the requirement of conformance with
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the military law but leaves him subject to the civil law. No further historical comment is required here. The Chief Justice has set out the statutory scheme so far as it is necessary to outline the present scope of the penal provisions provided for and the organization of the courts for the administration of the military law.
As has been observed by the Chief Justice, the National Defence Act has not been declared to be operative despite the provisions of the Canadian Bill of Rights and it is of course not questioned that the National Defence Act is a law of Canada within the meaning of s. 5(2). The provisions of the Canadian Bill of Rights must therefore be borne in mind in construing the National Defence Act, particularly where, as here, it is alleged that it violates one of the rights guaranteed thereunder.
I turn to the first point raised by counsel for the appellant, namely, that the provisions of the National Defence Act which provide for the trial by court martial of members of the armed services for an offence under the Narcotic Control Act offend the Canadian Bill of Rights in that they deprive the serviceman of his right to a fair hearing by an independent and impartial tribunal, as provided for in s. 2(f). With the greatest deference for those who hold opposing views, I am unable to conclude that a trial by court martial under the provisions of the National Defence Act of criminal offences, which are also offences at civil law, deprives the defendant of a fair hearing by an independent tribunal. From the earliest times, officers of the armed forces in this and, I suggest, all civilized countries have had this judicial function. It arose from practical necessity and, in my view, must continue for the same reason. It is said that by the nature of his close association with the military community and his identification with the military society, the officer is unsuited to exercise this judicial office. It would be impossible to deny that an officer is to some extent the representative of the class in the military hierarchy from which he comes; he would be less than human if he were not. But the same argument, with equal fairness, can be raised against those who are appointed to judicial office in the civilian society. We are all
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products of our separate backgrounds and we must all in the exercise of the judicial office ensure that no injustice results from that fact. I am unable to say that service officers, trained in the ways of service life and concerned to maintain the required standards of efficiency and discipline—which includes the welfare of their men—are less able to adjust their attitudes to meet the duty of impartiality required of them in this task than are others.
Furthermore, the problems and the needs of the armed services, being in many respects special to the military, may well from time to time require the special knowledge possessed by officers of experience who, in this respect, may be better suited for the exercise of judicial duty in military courts than their civilian counterparts. It has been recognized that wide powers of discipline may be safely accorded in professional associations to senior members of such professions. The controlling bodies of most professions such as those of law, medicine, accountancy, engineering, among others, are given this power. I am unable to say that the close identification of such disciplinary bodies with the profession concerned, taken with the seniority enjoyed by such officers within their professional group, has ever been recognized as a disqualifying factor on grounds of bias or otherwise. Rather it seems that the need for special knowledge and experience in professional matters has been recognized as a reason for the creation of disciplinary tribunals within the separate professions. It must also be remembered that while this appeal concerned only the armed services serving in Canada, the position of forces serving abroad not being in issue, it must be recognized that in service abroad the officers must assume the judicial role by reason of the absence of any civil legal processes. The character of the officer for independence and impartiality will surely not vary because he is serving overseas. The practical necessities of the service require the performance of this function by officers of the service and I find no offence to the Canadian Bill of Rights in this respect. I would add that there now exists a Court Martial Appeal Court, a professional Court of Appeal with a general appellate jurisdiction over the courts
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martial. This is, in my view, a significant safeguard and its creation is a realistic and practical step toward the provision of that protection which is required in the circumstances. I must conclude that no effect may be given to the first point.
The appellant’s second point raises the question of whether the trial of servicemen by court martial under military law for an offence under the criminal law of Canada or as here under the Narcotic Control Act deprives the serviceman of equality before the law contrary to the provisions of s. 1(b) and s. 2 of the Canadian Bill of Rights.
This Court decided in Regina v. Drybones that the Canadian Bill of Rights was effective to render inoperative validly enacted federal legislation where such legislation infringed the right of a subject to equality before the law. Judicial construction of the words “equality before the law” found in such cases as The Queen v. Burnshine; Prata v. The Minister of Manpower and Immigration; and Bliss v. A.G. Canada has advanced the proposition that legislation passed by Parliament does not offend against the principle of equality before the law if passed in pursuance of a “valid federal objective”. The significance of these words must be examined.
Prior to the passing of the Canadian Bill of Rights, Parliament could have passed in the exercise of its power under s. 91(7) of the British North America Act without restriction such legislation in respect of the governance and control of the armed forces as it wished. The Canadian Bill of Rights, however, has introduced another dimension and federal legislation must now be construed according to its precepts. Certainly the creation and maintenance of the armed forces of the land constitute a valid federal objective within the legislative competence of the federal Parliament. A valid federal objective, however, must mean something more than an objective which simply falls
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within the federal legislative competence under the British North America Act. Even in the absence of the Canadian Bill of Rights, a federal enactment could not be supported constitutionally if it did not embody such an objective. The word “valid” in this context must import a concept of validity not only within the field of constitutional legislative competence but also valid in the sense that it does not offend the Canadian Bill of Rights. Our task then is to determine whether in pursuit of an admittedly constitutional federal objective Parliament has, contrary to the provisions of the Canadian Bill of Rights, created for those subject to military law a condition of inequality before the law.
It seems to me that it is incontestable that Parliament has the power to legislate in such a way as to affect one group or class in society as distinct from another without any necessary offence to the Canadian Bill of Rights. The problem arises however when we attempt to determine an acceptable basis for the definition of such a separate class, and the nature of the special legislation involved. Equality in this context must not be synonymous with mere universality of application. There are many differing circumstances and conditions affecting different groups which will dictate different treatment. The question which must be resolved in each case is whether such inequality as may be created by legislation affecting a special class—here the military—is arbitrary, capricious or unnecessary, or whether it is rationally based and acceptable as a necessary variation from the general principle of universal application of law to meet special conditions and to attain a necessary and desirable social objective.
There are many such acceptable distinctions recognized in the law. If we are to have safety on the highways, the blind or those with deficient sight must be forbidden to drive. If young people and children are to be protected and their welfare fostered in youth, we have long recognized that special legislative provisions must be made for them imposing restrictions and limitations upon their freedom more stringent than upon adults. In matters of criminology, differences which have
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been considered conductive to the welfare of society and to young offenders have been considered permissible (see Regina v. Burnshine, supra). There are many such cases where the needs of society and the welfare of its members dictate inequality for the achievement of socially desirable purposes. It would be difficult, if not impossible, to propound an all‑embracing test to determine what departures from the general principle of the equal application of law would be acceptable to meet a desirable social purpose without offence to the Canadian Bill of Rights. I would be of the opinion, however, that as a minimum it would be necessary to inquire whether any inequality has been created for a valid federal constitutional objective, whether it has been created rationally in the sense that it is not arbitrary or capricious and not based upon any ulterior motive or motives offensive to the provisions of the Canadian Bill of Rights, and whether it is a necessary departure from the general principle of universal application of the law for the attainment of some necessary and desirable social objective. Inequalities created for such purposes may well be acceptable under the Canadian Bill of Rights.
Applying this test, it seems to me that the creation of a body of military law and the tribunals necessary for its administration, involving as a necessary incident thereto different treatment at law for servicemen in certain cases from that afforded to civilians, does not by itself constitute a denial of equality before the law contrary to the provisions of the Canadian Bill of Rights. It is apparent that the creation of military law and its courts was undertaken in pursuit of a constitutional federal objective. It has been done in my view rationally, not arbitrarily or capriciously, and no ulterior motive has been shown which could be construed as an assault upon any of the rights, liberties and freedoms protected by the Canadian Bill of Rights. It seems abundantly clear to me that the emergence of a body of military law with its judicial tribunals has been made necessary because of the peculiar problems which face the military in the performance of its varied tasks. In my opinion, the recognition of the military as a class within society in respect of which special
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legislation exists dealing with legal rights and remedies, including special courts and methods of trial, fulfilling as it does a socially desirable objective, does not offend the Canadian Bill of Rights.
It must not however be forgotten that, since the principle of equality before the law is to be maintained, departures should be countenanced only where necessary for the attainment of desirable social objectives, and then only to the extent necessary in the circumstances to make possible the attainment of such objectives. The needs of the military must be met but the departure from the concept of equality before the law must not be greater than is necessary for those needs. The principle which should be maintained is that the rights of the serviceman at civil law should be affected as little as possible considering the requirements of military discipline and the efficiency of the service. With this concept in mind, I turn to the situation presented in this case.
Section 2 of the National Defence Act defines a service offence as “an offence under this Act, the Criminal Code, or any other Act of the Parliament of Canada, committed by a person while subject to the Code of Service Discipline”. The Act also provides that such offences will be triable and punishable under military law. If we are to apply the definition of service offence literally, then all prosecutions of servicemen for any offences under any penal statute of Canada could be conducted in military courts. In a country with a well-established judicial system serving all parts of the country in which the prosecution of criminal offences and the constitution of courts of criminal jurisdiction is the responsibility of the provincial governments, I find it impossible to accept the proposition that the legitimate needs of the military extend so far. It is not necessary for the attainment of any socially desirable objective connected with the military service to extend the reach of the military courts to that extent. It may well be said that the military courts will not, as a matter of practice, seek to extend their jurisdiction over the whole field of criminal law as it affects the members of the armed services. This may well be so, but we are not concerned here with the actual conduct of military courts. Our problem is one of
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defining the limits of their jurisdiction and in my view it would offend against the principle of equality before the law to construe the provisions of the National Defence Act so as to give this literal meaning to the definition of a service offence. The all-embracing reach of the questioned provisions of the National Defence Act goes far beyond any reasonable or required limit. The serviceman charged with a criminal offence is deprived of the benefit of a preliminary hearing or the right to a jury trial. He is subject to a military code which differs in some particulars from the civil law, to differing rules of evidence, and to a different and more limited appellate procedure. His right to rely upon the special pleas of “autrefois convict” or “autrefois acquit” is altered for, while if convicted of an offence in a civil court he may not be tried again for the same offence in a military court, his conviction in a military court does not bar a second prosecution in a civil court. His right to apply for bail is virtually eliminated. While such differences may be acceptable on the basis of military need in some cases, they cannot be permitted universal effect in respect of the criminal law of Canada as far as it relates to members of the armed services serving in Canada.
It is of course evident that there are many matters peculiar to the military which require a special code and special courts. I refer to what I would describe as specifically military offences, such as absence without leave, desertion, insubordination, failure to observe and comply with military regulations regarding care and handling and use of military stores and equipment, failure to obey lawful commands of officers and a host of other matters dealt with in the National Defence Act which relate to service matters and concerns and which require special military rules and procedures. These form part of the proper field of military law and military courts. There are, in addition, other offences which, while offences under the civil law, are also, when committed by servicemen in relation to military service, properly to be considered within the scope of the military
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courts. Theft is a criminal offence punishable in the civil courts but it would, I suggest, be impossible to say that theft by one soldier from another in barracks is not as well an offence which could be categorized as a military offence and come within the purview of military law. The same is true of trafficking or possession of forbidden narcotics in barracks, the same is true of many other matters and the military courts must have power to deal with them in addition to those offences which could be categorized as military offences pure and simple.
The question then arises: how is a line to be drawn separating the service-related or military offence from the offence which has no necessary connection with the service? In my view, an offence which would be an offence at civil law, when committed by a civilian, is as well an offence falling within the jurisdiction of the courts martial and within the purview of military law when committed by a serviceman if such offence is so connected with the service in its nature, and in the circumstances of its commission, that it would tend to affect the general standard of discipline and efficiency of the service. I do not consider it wise or possible to catalogue the offences which could fall into this category or try to describe them in their precise nature and detail. The question of jurisdiction to deal with such offences would have to be determined on a case-by-case basis. A serviceman charged in a service court who wished to challenge the jurisdiction of the military court on this basis could do so on a preliminary motion. It seems, by way of illustration, that a case of criminal negligence, causing death resulting from the operation of a military vehicle by a serviceman in the course of his duty, would come within the jurisdiction of the court martial, while the same accident, occurring while the serviceman was driving his own vehicle on leave and away from his military base or any other military establishment, would clearly not. It may be observed that, on an admittedly different constitutional basis, this approach has been taken in American courts where a possible conflict of jurisdiction had arisen between the military tribunals and the civil courts.
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I would therefore hold that the provisions of the National Defence Act, in so far as they confer jurisdiction upon courts martial to try servicemen in Canada for offences which are offences under the penal statutes of Canada for which civilians might also be tried, and where the commission and nature of such offences has no necessary connection with the service, in the sense that their commission does not tend to affect the standards of efficiency and discipline of the service, are inoperative as being contrary to the Canadian Bill of Rights in that they create inequality before the law for the serviceman involved.
Turning to the case at bar, I have no difficulty in holding that the offences here under consideration are sufficiently connected with the service to come within the jurisdiction of the military courts. Trafficking and possession of narcotics, in a military establishment, can have no other tendency than to attack the standards of discipline and efficiency of the service and must clearly come within the jurisdiction of the military courts and I would, therefore, dismiss the appeal.
I would add that I limit all of the comments I have made and confine the effect of this judgment to the application of military law and the jurisdiction of military courts to those serving within Canada. I leave open, entirely, any question which may arise in respect of military forces of Canada serving abroad.
Appeal dismissed, LASKIN C.J. and ESTEY J. dissenting.
Solicitors for the appellant: Wilson, Marshall & Crawford, Victoria.
Solicitor for the respondent: Roger Tassé, Ottawa.
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