Cases adjourned, charges withdrawn as military struggles with constitutionality of courts martial

Stephanie Raymond is trying to get used to seeing her life put on hold by the courts.

The Quebec woman and former soldier — whose case led to a crackdown on sexual assault and inappropriate conduct in the military — has found herself lately in a holding pattern, along with dozens of other alleged victims.

Uncertainty over whether the Canadian military has the constitutional authority to try its own members for serious crimes — such as sexual assault and murder — has left her alleged attacker's court martial in legal limbo.

Her case was delayed previously in 2016 and in October of 2018 on an intervention by the defence minister and an order for the accused to face a new trial. Now, for the third time, she's being forced to wait while the country's highest court considers whether her case can go forward in the military justice system.

"I will probably have to wait five years again for this to be closed in my life," she told CBC News.

In late September, a military appeals court ruled that the inability of soldiers, sailors and aircrew to elect trial by jury for serious crimes (those punishable by five years or more in prison) amounts to a violation of the Charter of Rights and Freedoms.

According to National Defence figures, 38 cases — including 24 cases of sexual assault — were cast into doubt by the appeals court ruling involving Master-Cpl. Raphael Beaudry, who was charged with sexual assault but denied a jury trial.

Justice delayed

The effect on the military justice system has been profound. Thirteen cases are waiting in the wings with no dates set for courts martial. Military judges have opted to adjourn four trials until after the Supreme Court delivers a decision on the military appeals court ruling.

CBC News has obtained a copy of one of those decisions to adjourn, rendered on Nov. 22. The judge in that case had been asked to dismiss the charges outright, but ruled ("in the interest of justice") that another trial date would be proposed once the question of constitutionality was cleared up.

Charges in two sexual assault cases were withdrawn last month — but prosecutors insist those cases have not been "dropped" and they reserve the right to resume court action after the Beaudry case is heard.

Other cases are various stages of review, but almost everyone involved in the system agrees there is extraordinary "uncertainty" in the system.

The director of military prosecution asked the high court to stay the court martial appeal decision and filed a written argument — a 'factum' — on Wednesday.

That factum says the effects of the decision stretch beyond the law and touch on matters of discipline, suggesting that soldiers cannot be held accountable for criminal offences.

"This seriously degrades the ability to maintain discipline, efficiency and morale," says the factum, delivered to the court Wednesday.

A military justice expert said each delayed case involves making tough calls with profound consequences.

"It is up to the judges to determine ... how they're going to proceed. It is, quite frankly, an uncomfortable position for them to be in," said Rory Fowler, a retired lieutenant-colonel and former military lawyer, now in private practice.

"It is certainly an uncomfortable position for the director of military prosecutions to be in. It's tough for the complainants. And it's awkward for the accused too."

The stakes, he said, could be enormous — especially if the country's top court upholds the military appeals court decision.

"What happens if you keep adjourning the matters and the Supreme Court of Canada hands down a judgment in June or July that upholds Beaudry?" Fowler asked.

"Then you have further delayed the matters when you don't have jurisdiction and it's too late for the civilian criminal justice system to take over."

At the moment, no cases have been referred to civilian courts, although Raymond said she has requested the trial of her alleged attacker be moved there.

"I want it to be heard in the civilian criminal justice system and I have absolutely no news," she said.

"I am not frustrated for me, but I'm frustrated these things continue to happen [and] the government continues to let this happen. That is what is the most frustrating."

Col. Bruce MacGregor, the director of military prosecutions, acknowledged the uncertainty facing plaintiffs, accused and prosecutors and confirmed that some cases have been adjourned or withdrawn because of the unanswered questions about the jurisdictional reach of courts martial.

He noted, however, that the military has other ways to prosecute in non-violent cases — notably by charging individuals with service offences that carry criminal records.

A question of control

While MacGregor did not address the Raymond case directly, he did say there is a reluctance in the military justice system to transfer cases to civilian courts because the military then loses control of how, when — or even if — the matter gets prosecuted.

At least one critic says Ottawa was warned about a possible legal bottleneck.

Michel Drapeau, a retired colonel and military law expert, said he and a former Federal Court justice told the federal government over two years ago the constitutionality of jury trials in the military was open to question and challenge.

The Liberals introduced legislation overhauling the military justice system last spring to give victims a greater say in the system and to make summary trials (not jury trials) more fair. The issue currently tying up the system wasn't addressed by that bill.

"This government has not passed a single bill on military justice, despite everything that has been said and done, and despite everything that has been said and done about sexual assault," Drapeau told CBC News. "It's no better now that it was four years ago."

The legislation has not made it out of the House of Commons yet and Drapeau said he fears it won't be passed before the next election is called.