Military Justice Jurisprudence

This chapter examines key military justice jurisprudence from the 2025/2026 reporting period. These decisions, from Courts Martial, the Court Martial Appeal Court, the Federal Court of Canada, and the Supreme Court of Canada will help shape the future development of the military justice system.

Courts Martial

Legacy Sexual Offence Cases Post-Edwards

Following the IECR’s^{Footnote 77} interim recommendation and subsequent Interim Direction Regarding the Implementation of Madame Arbour Interim Recommendation from the DMP, the CMPS ceased prosecuting service offences based on Criminal Code sexual offences. However, a number of legacy cases already preferred or proceeding before the DMP’s Interim Direction remained within the military justice system. Some of these remaining cases were temporarily paused pending the Supreme Court of Canada’s decision in Edwards,^{Footnote 78} where the Court confirmed the system’s constitutionality. These cases resumed and progressed during the reporting period.

In R v Iredale, the accused was acquitted of three counts of sexual assault under s. 130 of the National Defence Act (sexual assault s. 271 Criminal Code) and one count of conduct prejudicial to good order and discipline under s. 129 of the National Defence Act. However, he was found guilty of two counts of conduct prejudicial to good order and discipline under s. 129 of the National Defence Act, resulting in a severe reprimand and a $5,000 fine. In R v Brousseau, R v Daniel-Awong, and R v Brown, the accused were acquitted of all charges. No public decisions were released in these cases following the end of proceedings.

In R v Houde,^{Footnote 79} discussed below, the Court Martial Appeal Court ordered a new trial, which is expected during the next reporting period.

Indigenous Practices and Sentencing at Court Martial

R v Christmas^{Footnote 80}

In R v Christmas, the Court Martial considered whether Indigenous cultural and spiritual practices could be incorporated into court martial proceedings. The Court approved the use of Indigenous practices, including taking an oath on an eagle feather and participating in a smudging ceremony,^{Footnote 81} confirming that such practices are consistent with the solemnity of court martial proceedings and broader reconciliation efforts in Canada.

The accused faced charges under sections 130, 93, and 97 of the National Defence Act arising from incidents that occurred during a Canadian Armed Forces training course in 2019. The accused was acquitted of both sexual assault and disgraceful conduct charges but was convicted of drunkenness. In determining sentence, the Court considered the circumstances of Indigenous offenders in accordance with the National Defence Act.^{Footnote 82} For the offence of drunkenness, the accused received a fine of $500.^{Footnote 83}

This decision confirms the authority of Courts Martial, under s. 179 of the National Defence Act and Queen’s Regulations and Orders for the Canadian Forces 101.04, to incorporate Indigenous cultural and spiritual practices. It reflects developments in civilian courts and supports ongoing reconciliation efforts within Canada.

The Timeliness of Disclosure

R v Michalopoulos^{Footnote 84}

In R v Michalopoulos, the applicant sought relief under section 24(1) of the Charter, asserting that delayed and incomplete disclosure by the prosecution, most notably an audio recording of a key witness, has infringed his s. 7 right to make full answer and defence. In response to substantial supplementary disclosure (exceeding 1,250 pages) and the late delivery of the audio recording on the scheduled trial date, the applicant had requested either a five-week adjournment or the exclusion of the witness's evidence, citing significant challenges in adequately preparing for trial.

The prosecution conceded that the late disclosure of the recording breached its obligations to provide relevant information to the defence but maintained that the applicant already possessed the essential information for months.

The Court reaffirmed that the prosecution has a continuous duty to disclose all relevant information in a timely manner, as established in R v Stinchcombe,^{Footnote 85} and recognized this obligation as constitutionally protected under s. 7. It further pointed out, referencing R v Carosella,^{Footnote 86} that failure to disclose relevant information can itself constitute a breach, though prejudice is primarily assessed when determining remedies. Drawing on R v Bjelland,^{Footnote 87} the Court emphasized that exclusion of evidence is an exceptional remedy reserved for cases where trial fairness cannot be restored otherwise. Applying these principles, the Court found a limited s. 7 breach arising from the late disclosure of the audio recording but concluded that the overall disclosure shortcomings did not render the trial unfair.

As a remedy, the court granted a brief adjournment from 8 to 12 September 2025 and permitted the defence to defer cross-examination of the witness. This ruling highlights the significance of timely and systematic disclosure, confirming that courts prioritize proportionate remedies that uphold procedural fairness as well as the efficiency and integrity of the trial process.

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Court Martial Appeal Court

Late Notice of Appeal Accepted Following Constitutional Change

R v Cadieux^{Footnote 88}

The appellant sought leave to file a late notice of appeal to revive an appeal abandoned in 2019 following a conviction for sexual assault under National Defence Act s. 130 (s.271 Criminal Code), which triggered a mandatory 20‑year sex offender registration under s. 227.01 of the National Defence Act.

Following the Supreme Court’s decision in R v Ndhlovu,^{Footnote 89} which declared mandatory registration unconstitutional under s. 7 of the Charter, and the CMAC confirmation in R v O’Dell^{Footnote 90} that this applied to National Defence Act s. 227.01, the appellant submitted an application in August 2025 to extend the time to challenge the registration order. The Court requested submissions on whether the previous abandonment barred the motion. The issues were whether abandonment precluded the motion and whether an extension should be granted.

While the CMAC Rules do not expressly allow revival of an abandoned appeal, Rule 3(1) is intended to ensure that the law is carried out to secure the just resolution of proceedings. Applying Philipos v. Canada (Attorney General),^{Footnote 91} the Court held that revival of a proceeding is permissible where a fundamental event undermines the abandonment, there is a reasonable prospect of success, and no undue prejudice arises.

The Court found that the constitutional developments in Ndhlovu and O’Dell constituted such a fundamental event, that the appeal had a reasonable prospect of success, and that reopening would cause no prejudice or offend finality. It further held that it had authority under National Defence Act s. 232(4) to extend time where justice so requires, noting the serious constitutional issues raised, the lack of prejudice, and the prosecution’s support.

The motion was granted and the notice of appeal filed on 26 August 2025 accepted. The decision affirms that abandonment does not extinguish appeal rights and may be set aside in exceptional circumstances, emphasizing flexibility, fairness, and the protection of constitutional rights within the military justice system.

Sentencing Authority under the National Defence Act

R v Calderon^{Footnote 92}

The CMAC reaffirmed that the military justice system is distinct from the civilian criminal system and that its separate sentencing regime under the National Defence Act is constitutionally valid. In this case, the prosecution argued that courts martial should have access to all discretionary sentencing options available under the Criminal Code, but the CMAC rejected this position. The case arose from an incident in which the respondent, a corporal, engaged in dangerous driving that resulted in a vehicle rollover, minor injuries, and the destruction of a military truck. After charges of dangerous operation of a motor vehicle causing bodily harm were withdrawn, the respondent pleaded guilty to two counts of dangerous driving.

Although the parties jointly proposed a sentence including a driving prohibition, the Military Judge concluded he lacked jurisdiction under the National Defence Act to impose such an order. On appeal, the CMAC upheld that conclusion, finding it unnecessary to address additional arguments. The sole issue was whether courts martial may impose all discretionary sentencing options available to civilian courts.

The CMAC emphasized that members of the Canadian Armed Forces are governed by the Code of Service Discipline, which sets out a complete sentencing framework, including a closed list of punishments under National Defence Act s. 139, aligned with military objectives of discipline, efficiency, and morale. While civilian courts may impose discretionary orders such as driving prohibitions, the National Defence Act contains no equivalent authority, and Parliament has created distinct, self-contained regimes for matters such as weapons prohibitions, Sex Offender Information Registration Act orders, and DNA orders. Interpreting National Defence Act s. 130(2)(b) in its full context, the CMAC held that it establishes maximum punishments rather than importing all civilian sentencing tools, a conclusion reinforced by the French text and the need to avoid redundancy. The broader statutory, contextual, and jurisprudential landscape—including consistent authority from the Supreme Court of Canada and CMAC—confirms that courts martial are limited to National Defence Act authorized punishments and do not have access to civilian measures such as conditional sentences or probation unless expressly provided.

The appeal was therefore dismissed. The decision reinforces the strict separation between military and civilian sentencing regimes, confirms that courts martial cannot adopt discretionary civilian sanctions absent legislative authority, and underscores that any expansion of military sentencing powers must come from Parliament rather than judicial interpretation.

Military Jurisdiction over Civilians Abroad

R v Allison^{Footnote 93}

The CMAC considered an appeal from a conviction by a Standing Court Martial for operating a conveyance while impaired, contrary to National Defence Act s.130 and Criminal Code s. 320.14(1)(a). Although the conduct occurred in Belgium, where it was not criminal, Canadian law applied extraterritorially under the Criminal Code and the National Defence Act because the appellant was a civilian dependant accompanying a member of the Canadian Armed Forces. At trial, the appellant challenged the jurisdiction of the military justice system through a plea in bar of trial, arguing that prosecuting a civilian in a court martial was arbitrary and disproportionate in violation of s. 7 of the Charter; the Chief Military Judge dismissed that application. On appeal, the appellant did not contest the applicability of Canadian law, the commission of the offence, the constitutionality of the relevant legislative provisions, or the exercise of prosecutorial discretion, which significantly narrowed the scope of the appeal.

The sole issue was whether the decision to prosecute the appellant within the military justice system was arbitrary or disproportionate. The CMAC rejected the argument that civilians may only be tried by military tribunals in exceptional circumstances, finding no such limitation in the National Defence Act and held that prosecutorial discretion to proceed under the Code of Service Discipline is entitled to substantial deference and may be interfered with only in cases of flagrant impropriety amounting to an abuse of process. Relying on Supreme Court of Canada authority, including R v Anderson,^{Footnote 94} the CMAC concluded that the prosecution was neither arbitrary nor disproportionate, was consistent with s. 7 of the Charter, and aligned with the purposes of the Code of Service Discipline, including the maintenance of discipline, efficiency, and morale of the Canadian Armed Forces. The appeal was therefore dismissed. This case matters because it removes a perceived restraint on the exercise of the jurisdiction over civilian set in Wehmeier.^{Footnote 95}

Judicial Instructions and Trial Fairness in Courts Martial

R v Houde^{Footnote 96}

The CMAC granted the appeal of a conviction, which stemmed from a General Court Martial verdict finding the individual guilty on two counts of sexual assault involving their former partner. The incidents were alleged to have occurred between 2013 and 2018 near Canadian Forces Base Bagotville. The appellant was also acquitted of a third charge related to bodily harm. They argued that the trial judge gave improper instructions to the panel, refused to order the production of text messages, and questioned the constitutional independence of military judges. However, the last two arguments were dropped or became irrelevant after the Supreme Court’s ruling in Edwards.^{Footnote 97}

The remaining issues concerned whether the trial judge’s instructions contravened the principles in R v W.(D).,^{Footnote 98} concerning the proper approach to determining whether a reasonable doubt exists in the face of conflicting evidence, and whether the judge made inappropriate comments on the evidence, including photographic evidence. Applying the functional approach to jury instructions, the CMAC emphasized that the question is whether the charge, read as a whole, properly equipped the panel to apply the law, particularly the presumption of innocence and the standard of proof beyond a reasonable doubt.

Although much of the charge followed accepted models, the CMAC identified several serious errors: certain passages improperly framed the case as turning on the complainant’s credibility rather than on whether the Crown had proven guilt beyond a reasonable doubt, thereby risking a shift in the burden of proof. The CMAC rejected the characterization of these passages as mere commentary, finding they amounted to legal misdirection with a material impact on the verdict. The Court further held that the errors could not be cured by isolating correct portions of the charge and that, despite the acquittal on one count, it could not be assumed the panel would have reached the same verdict absent the flawed instructions.

The CMAC also found that the trial judge’s treatment of photographic evidence was unbalanced and unfair, as it failed to explain how the evidence could support the defence theory and improperly directed the panel to disregard evidence it did not believe, contrary to the principle that all admitted evidence must be considered in assessing reasonable doubt. As a result, the CMAC ordered a new trial on the remaining charges, reaffirming the centrality of the W.(D). framework, the limits on judicial commentary, and the requirement that panels assess all evidence holistically.

Robust application of Jordan to courts martial

R v Jacques^{Footnote 99}

The CMAC dismissed both an appeal by the CMPS and a cross‑appeal by the accused arising from a Military Judge’s decision to stay six fraud‑related charges for unreasonable delay under Charter s. 11(b). The Military Judge had identified two relevant periods of delay: a 189‑day delay in 2021–2022 caused by a change in defence counsel, properly treated as an exceptional circumstance not attributable to the accused, and a 217‑day delay in 2023–2024 triggered by the accused’s Charter challenge to panel selection, which required recalling the Court Martial Administrator as a witness and expanded when additional hearing days became necessary. Although the defence initiated the Charter application, the Military Judge concluded that the decisive cause of exceeding the 18‑month Jordan^{Footnote 100} ceiling was the prosecution’s complete unavailability for proposed trial dates in November 2023 and early 2024, due to staffing constraints and an inability to reassign counsel, whereas defence availability became limited only later.

On appeal, the CMAC reaffirmed that the Jordan framework applies fully to courts martial, that factual findings on delay attract deference, and that exceptional circumstances must be unforeseen, unavoidable, and beyond the prosecution’s ability to remedy. It found no reviewable error in the Military Judge’s conclusion that the ceiling had already been exceeded when the trial was adjourned on 3 August 2023, rendering later events—such as the accused’s Federal Court litigation—irrelevant. The CMAC rejected the prosecution’s argument that the Military Judge misapprehended availability, confirming that the accused was available while the prosecution was not, and held that earlier delays had already been properly accounted for. It also refused to entertain the prosecution’s attempt to raise a new exceptional circumstances argument on appeal, noting that even if considered, it lacked merit because the need to recall the Court Martial Administrator was a foreseeable consequence of the prosecution’s change in position. The CMAC therefore upheld the stay of proceedings and dismissed the accused’s cross‑appeal as moot, reinforcing that institutional or scheduling limitations within the CMPS will not excuse delay beyond the Jordan ceiling and underscoring the obligation of military justice actors to ensure trials proceed within constitutional time limits.

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Federal Court of Canada

The Reasonableness of a Summary Hearing Review

Wiome v Canada (Attorney General)^{Footnote 101}

The applicant sought judicial review of findings that they had committed two service infractions under Queen’s Regulations and Orders for the Canadian Forces 120.03(i): making comments of a sexual nature and making racist comments. They also sought review of the sanction of reduction in rank. The applicant alleged a lack of adequate reasons and a breach of s. 7 of the Charter. The Court found the Review Authority’s decision to be unreasonable and remitted the matter to a different Review Authority for redetermination. The summary hearing decision was subsequently reviewed by a different Review Authority, which found the decision of the OCSH to be valid and upheld both the findings and the sanction imposed. Following this review, the applicant filed a second notice for judicial review with the Federal Court. This application is expected to be heard during the next reporting period.

During the reporting period, two similar cases were filed seeking judicial review of Review Authority decisions: Coville-Primeau v Canada (Attorney General) and Molloy v Canada (Attorney General). Both matters are currently awaiting hearing dates before the Federal Court.

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Supreme Court of Canada

There were no Supreme Court of Canada decisions rendered during the reporting period that directly impacted the military justice system. However, the effects of the Court’s 2024 decision in Edwards^{Footnote 102} continued to be felt during this reporting period, particularly in relation to legacy court martial proceedings that had been paused pending the outcome of that appeal.

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