Sui Not-So-Generous: The Unconstitutionality of Canadian Court Martial Jury Trials

• Author: Lieutenant (Navy) Mike Madden
• Position: C.D., B.A., M.A., Dalhousie Law School (Second Year Student), with service in the Canadian Forces as both an artillery and naval under water warfare officer
• Pages: 24-36

ARTICLE

SUI NOT-SO-GENEROUS:

THE UNCONSTITUTIONALITY OF

CANADIAN COURT MARTIAL JURY TRIALS

By Lieutenant (Navy) Mike Madden*

CITED: (2009) 14 Appeal 24-36

I. INTRODUCTION

e Canadian military justice system is rarely the subject of academic study, and is there-

fore unfortunately deprived of benecial input from many well-qualied sources. How-

ever, the realities of contemporary times, including the annually increasing number of

courts martial,1the annually increasing number of constitutional challenges heard at courts

martial,2and the tendency for courts martial to hear increasingly serious charges,3all sug-

gest that the military justice system is one that deserves careful critical scrutiny.

e constitutionality of certain court martial “jury”4procedures is now a particularly appro-

priate topic of study in light of the major amendments to the National Defence Act5(“NDA”)

1 There were 56 cases tried by court martial in 2003-2004, 64 cases in 04-05, 39 in 05-06 (One of the three pre-

siding military judges was on sick leave.), and 67 cases in 06-07. Results of courts martial are available online:

Department of National Defence .

2 There were seven applications brought under the Canadian Charter of Rights and Freedoms by f‌ive different

accused members in 2006, while 16 applications were brought by 12 accused members in 2007. This data is

also available online at Department of National Defence, ibid.

3 For instance, Corporal (Cpl) Matthew Wilcox will soon be tried at court martial for manslaughter—the f‌irst time

that such an offence will be heard at court martial in recent memory. Cpl Wilcox accidentally shot and killed his

friend, Cpl Ronald Megeney, while deployed in Afghanistan. The shooting allegedly took place while they were

playing a “game” of “quick draw.” (See online: Department of National Defence

).

4 Although civilian juries and court martial panels are not identical, I will often use the terms interchangeably for

the purposes of this paper.

5National Defence Act, R.S. 1985, c. N-5 [NDA].

24 wAPPEAL VOLUME 14

* C.D., B.A., M.A., Dalhousie Law School (Second Year Student), with service in the Canadian Forces as both an

artillery and naval under water warfare off‌icer. Lieutenant (Navy) Madden will be articling with the military’s

JAG branch and will subsequently serve as a legal off‌icer with the branch. The views expressed in this article are

those of the author, and should not be attributed to or taken as representing the views or the off‌icial policy of

the Canadian Forces, the Government of Canada (including any Department thereof), or any other institution

or organization.