Reference as to whether members of the Military or Naval Forces of the United States of America are exempt from Criminal Proceedings in Canadian Criminal Courts,

• Judge: Kerwin J.,Rand J,Taschereau J
• Court: Supreme Court (Canada)
• Docket Number: Case No. 36
• Date: 03 August 1943

Canada, Supreme Court.

(Sir Lyman P. Duff, C.J.C.; Kerwin, Hudson, Tascherau and Rand, JJ.)

Case No. 36

Reference re Exemption of United States Forces from Canadian Criminal Law.

International Law — Relation to Municipal Law — Incorporation of International Law in Municipal Law.

Jurisdiction — Exemptions from — Members of Foreign Armed Forces — Foreign Warships in Ports — Subjection to Criminal Law — Exterritoriality of Vessels — Implied Grant of Immunities — Implied Promise to Pass Necessary Legislation — Matters of Discipline — Powers of Arrest, Search, Entry and Custody — Canadian Constitutional Law — Competence of Legislature to Grant Immunities from Criminal Jurisdiction — International Law and Municipal Law — Evidence of International Law.

The Facts.—The Governor-General in Council referred the following two questions to the Supreme Court:

“(1) Are members of the military or naval forces of the United States of America who are present in Canada with the consent of the Government of Canada for purposes of military operations in connection with or related to the state of war now existing exempt from criminal proceedings prosecuted in Canadian criminal courts and, if so, to what extent and in what circumstances ?

“(2) If the answer to the first question is that the members of the forces of the United States of America are exempt from criminal proceedings or are only partially exempt, has Parliament, or the Governor-General in Council acting under the War Measures Act [R.S.C. 1927, c. 206], jurisdiction to enact legislation similar to the statute of the United Kingdom entitled the United States of America (Visiting Forces) Act, 1942 [c. 31] ?”

Held:

(1) Per Duff, C.J.C., and Hudson, J.: Canadian criminal courts had full criminal jurisdiction over offences committed on Canadian soil by the military forces of the United States who were present in Canada with the consent of the Government of Canada for the purpose of military operations connected with the war, although the Canadian courts did not in fact exercise jurisdiction in respect of acts committed within the lines of such forces, or of offences against discipline generally committed by one member of such forces against another member in cases in which the act or offence did not affect the person or property of a Canadian subject. The members of the crew of an armed ship of the United States were exempt from the jurisdiction of the criminal courts of Canada for offences committed on board ship by one member of the crew against another member, and generally in respect of acts which exclusively concerned the internal discipline of the ship. For offences committed on shore by members of the crew, they were not exempt from the jurisdiction of the criminal courts of Canada, but the courts did not exercise jurisdiction over offences committed by one member of the crew against another member, except at the request of the commander of the ship.

Per Kerwin and Tascherau JJ.: The military and naval troops having entered Canada on the invitation of the Dominion Government, the invitation must be taken to have been extended on the basis that complete immunity from prosecution in Canadian criminal courts would be extended to members of the United States forces. A member of a United States military or naval force stationed in Canada is immune whether he be absent from his unit or ship on duty or on leave. The immunity extends to any member of such forces, whether attached to a unit stationed, or a ship present, in Canada, so long as his presence in Canada is in pursuance of the invitation and consent of the Canadian Government, subject, however, to the right of the Canadian courts to exercise jurisdiction when immunity is waived by the United States. The immunity does not extend to a member of the United States forces coming to Canada on his own business or pleasure. Moreover, the powers of arrest, search, entry or custody which may be exercised by Canadian authorities are not interfered with.

Per Rand, J.: The members of the United States forces are exempt from criminal proceedings in Canadian courts for offences against local law committed in their own camps or on their warships, except against persons not subject to United States service law, or their property, or for offences against local law wherever committed against other members of these forces, their property and the property of their Government, but the exemption is only to the extent that United States courts exercise jurisdiction over such offences.

(2) The Parliament of Canada has power to pass legislation similar to the United States of America (Visiting Forces) Act, 1942, exempting visiting American troops from the criminal jurisdiction of Canadian courts. Such legislation falls under head 7 of s. 91 of the British North America Act, as legislation “in relation to Militia and Defence”. Moreover, the Governor-General in Council has, by virtue of the War Measures Act, R.S.C. 1927, c. 206, full authority to pass any such measure.

Per Sir Lyman P. Duff, C.J.C.: “My view can be stated very briefly. It is, I have no doubt, a fundamental constitutional principle, which is the law in all the Provinces of Canada, that the soldiers of the army of all ranks are not, by reason of their military character, exempt from the criminal jurisdiction of the civil (that is to say, non-military) courts of this country.

“That is a well settled principle which has always been jealously guarded and maintained by the British people as one of the essential foundations of their constitutional liberties. [His Lordship here cited passages from Dicey's Law of the Constitution and from Professor Goodheart's article in American Bar Association Journal, vol. 28, p. 763, on the...