R. v. Saunders (D.E.),

• Jurisdiction: Nova Scotia
• Judge: Gibson
• Neutral Citation: 2005 NSPC 13
• Subject Matter: ARMED FORCES,CRIMINAL LAW
• Court: Provincial Court of Nova Scotia (Canada)
• Date: 24 March 2005
• Citation: (2005), 232 N.S.R.(2d) 249 (PC),2005 NSPC 13,232 NSR(2d) 249,(2005), 232 NSR(2d) 249 (PC),232 N.S.R.(2d) 249

R. v. Saunders (D.E.) (2005), 232 N.S.R.(2d) 249 (PC);

 737 A.P.R. 249

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. AP.044

Her Majesty the Queen v. Douglas Edward Saunders

(1197275-1197280; 2005 NSPC 13)

Indexed As: R. v. Saunders (D.E.)

Nova Scotia Provincial Court

Gibson, A.C.J.P.C.

March 24, 2005.

Summary:

The accused was charged with six Criminal Code offences (including buggery and sexual assault) which were allegedly committed in Germany between 1983 and 1985 while the accused was in the Canadian Armed Forces. The alleged victims were Canadian citizens. The accused argued that the court lacked jurisdiction to hear the trial of the charges.

The Nova Scotia Provincial Court held that it did not have jurisdiction to hear the charges unless Germany waived the primary jurisdiction vested in it to try the charges under a treaty (North Atlantic Status of Forces Agreement).

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Armed Forces - Topic 8603

Offences - General - Jurisdiction - [See both Criminal Law - Topic 2805 ].

Criminal Law - Topic 2805

Jurisdiction - General principles - Place of offence - Territoriality - The accused was charged with six Criminal Code offences which were allegedly committed in Germany between 1983 and 1985 - At that time, the accused was a member of the Canadian Armed Forces and subject to a Code of Discipline - The alleged victims were Canadian citizens - The accused argued that the court lacked jurisdiction to hear the trial of the charges - Section 273 of the National Defence Act (NDA) purported to extend the application of the Criminal Code extra-territorially to all members of the Canadian Armed Forces who were subject to the Code of Discipline - The accused argued that Canadian jurisdiction over the charges was limited to a Canadian Armed Forces service tribunal, which expired in 1988, due to the three year limitation period in s. 69(1) - After that date, jurisdiction remained solely with Germany - The Nova Scotia Provincial Court rejected the argument - Section 69 was directed only at the time limitation of a service tribunal to deal with a service offence - It did not limit the jurisdiction of a civil court to deal with a service offence when such offence was one over which a civil court would ordinarily have jurisdiction, including Criminal Code offences - Any time limitation periods applicable to the operation of s. 273 would be those found in the Criminal Code - See paragraphs 27 to 30.

Criminal Law - Topic 2805

Jurisdiction - General principles - Place of offence - Territoriality - The accused was charged with six Criminal Code offences which were allegedly committed in Germany between 1983 and 1985 - At that time, the accused was a member of the Canadian Armed Forces and subject to a Code of Discipline - The alleged victims were Canadian citizens - The accused argued that the court lacked jurisdiction to hear the trial of the charges - Section 273 of the National Defence Act (NDA) purported to extend the application of the Criminal Code extra-territorially to all members of the Canadian Armed Forces who were subject to the Code of Discipline - The Nova Scotia Provincial Court held that s. 273 was enacted subject to Canada's treaty obligations with Germany under the North Atlantic Status of Forces Agreement (SOFA) - SOFA and s. 69 of the NDA contemplated the loss of primary jurisdiction by Canada over the offences to Germany - Absent a waiver by Germany of its primary jurisdiction, there was no authority to vest jurisdiction in the Provincial Court as a Canadian civil court under s. 273 of the NDA - See paragraphs 31 to 58.

Criminal Law - Topic 2810

Jurisdiction - General principles - Jurisdiction over the accused - [See both Criminal Law - Topic 2805 ].

Criminal Law - Topic 2811

Jurisdiction - General principles - Jurisdiction over the offence - [See both Criminal Law - Topic 2805 ].

Cases Noticed:

R. v. Libman (1985), 62 N.R. 161; 12 O.A.C. 33; 21 C.C.C.(3d) 206 (S.C.C.), refd to. [para. 17].

R. v. Finta (1994), 165 N.R. 1; 70 O.A.C. 241; 88 C.C.C.(3d) 417 (S.C.C.), refd to. [para. 18].

Bolduc v. Quebec (Attorney General) et al. (1982), 43 N.R. 185; 68 C.C.C.(2d) 413 (S.C.C.), refd to. [para. 23].

Arcadi v. R., [1932] S.C.R. 158, refd to. [para. 23].

Solomon v. Commissioners of Customs and Excise, [1967] 2 Q.B. 116, refd to. [para. 31].

Daniels v. White, [1968] S.C.R. 517, refd to. [para. 32].

R. v. Cook (D.R.) (1998), 230 N.R. 83; 112 B.C.A.C. 1; 182 W.A.C. 1; 128 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 32].

Ship Lotus, Re, [1927] P.C.I.J. Ser. A. No. 9, refd to. [para. 35].

R. v. Greco (R.) (2001), 155 O.A.C. 316; 159 C.C.C.(3d) 146 (C.A.), refd to. [para. 39].

Statutes Noticed:

National Defence Act, R.S.C. 1985, c. N-5, sect. 69 [para. 26]; sect. 273 [para. 10].

Authors and Works Noticed:

Driedger - see Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes.

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), c. 20, pp. 542 to 565 [para. 7]; 592 [para. 8]; 594 [para. 15].

Counsel:

Robert Morrison, for the Crown;

David Bright, Q.C., for the defence.

This action was heard on March 24, 2005, at Dartmouth, Nova Scotia, by Gibson, A.C.J.P.C., of the Nova Scotia Provincial Court, who released the following decision on March 24, 2005.