More Military Police Shenanigans
October 9, 2024
New Military Judges – and New Military Judgments …
21 November 2024
Last Friday, 15 November 2024, I had the privilege to attend the ceremony in which two new military judges – Colonels Nacy Isenor and Steve Strickey – were sworn into office. The announcement of their appointment was made by the Minister of National Defence on 9 September 2024, and they had already begun presiding over courts martial. However, ceremonies of this nature are important.
The ceremony was presided over by the Chief Justice of the Court Martial Appeal Court of Canada (CMAC), Chief Justice Mary Gleason – who was appointed to that position just last month (replacing Chief Justice Richard Bell, who retired 30 October 2023) – and the Chief Military Judge, Captain (N) Julie Deschênes (whose designation as Chief Military Judge was announced by the Minister of National Defence on 27 March 2004, four years after her predecessor, Colonel Mario Dutil, retired).
In other words, 2024 witnessed significant appointments regarding the persons entrusted with key adjudicative authority in the administration of military justice.
And these appointments filled a pressing need; prior to the appointment of Colonels Isenor and Strickey, there were only three military judges (down from the typical complement of four) and the Deputy Chief Military Judge, Lieutenant-Colonel Louis-Vincent d’Auteuil (who served as acting Chief Military Judge for the four years that it took the Governor in Council to designate a new Chief Military Judge) is due to retire early in 2025.
These types of ceremonies are as important as change of command ceremonies for units, formations, and commands of the Canadian Forces (CF). And I am glad that the Office of the Chief Military Judge (OCMJ) organized this event. [As an aside, that is not easily done in an organization that does not have many troops who can assist with staging such an event.]
It was well attended by legal officers from the Office of the JAG (OJAG), and three or four former legal officers like myself, as well as the families of the newly appointed military judges. There were a few other noteworthy persons in attendance, including a representative of the Minister (but not the Minister himself), the Canadian Forces Provost Marshal (CFPM), and select members of the broader legal community.
But I was disappointed by the notable absence of other representatives of the general chain of command for the CF. I suspect that some people would have viewed the audience in attendance as representative of the ‘military justice system’. The Judge Advocate General (JAG) was present, as were all, or nearly all, of the ‘Deputies’ from the OJAG. But the military justice system is not comprised solely of military lawyers and judges. It does not exist and function for the benefit of the military legal community, although members of that community are responsible to ensure that it functions properly, and the JAG is responsible for the superintendence of the administration of military justice[1].
The military justice system under the National Defence Act (NDA) exists to serve the needs of the CF, to maintain discipline, efficiency, and morale of the CF.[2]
As a legal officer, I would often attend the ‘change of command’ (or ‘change of appointment’) ceremonies for the units, formations, and organizations that I supported. It was important for me to be present at such ceremonies. It signalled that the functioning of those organizations was important to my mission (and that my functions and duties served the missions of those organizations). It permitted me to maintain contact with the statutory decision-makers whom I supported. It showed that I cared.
I don’t know why there were not more representatives of the CF leadership present. Perhaps they weren’t invited. Perhaps they were invited, but they could not attend. I fear that too many senior leaders in the CF perceive the ‘military justice system’ as something that ‘belongs’ to the military legal community or is important only to the military legal community.
My message to the leadership of the CF is this: the military justice system is your justice system. If you don’t take an interest in, and ownership of, that system, you may end up losing it or it may deteriorate to the point that it will no longer function adequately to support your mission. In other words: use it or lose it.
[And, it should go without saying: use it properly.]
Let’s look at a recent judgment …
Admittedly, over the past few months, I have not maintained steady commentary on noteworthy judgments in administration of the affairs of the CF. And there have been many over the past several months. That is a lacuna that I intend to rectify over the next five or six weeks, culminating in my usual year-end review.
And speaking of the newly appointed military judges, there is a recent judgment from Colonel Strickey that merits some commentary (how’s that for a tidy segue?).
In mid-October, Colonel Strickey, MJ, delivered his judgment in R v Corporal Calderon, 2024 CM 7001 [Calderon].[3]
Corporal (Cpl) Calderon plead guilty to two charges: the first was dangerous operation of a motor vehicle, a criminal offence under subs 320.13(1) of the Criminal Code, incorporated into the Code of Service Discipline as a service offence under s 130 of the NDA; the second related to driving a vehicle of the CF in a manner that was dangerous to any person or property having regard to all the circumstances, contrary to para 111(1)(a) of the NDA.[4] This misconduct occurred while (then) Cpl Calderon was serving as support staff for training at CFB Borden.
Cpl Calderon was eventually sentenced to reduction in rank (to the rank of Private) and a reprimand.[5] [For the sake of consistency, I will generally refer to the offender by the rank used in the judgment of the court martial.]
On a tangential point, Cpl Calderon was (and is) a member of the reserve force component of the CF (specifically, the Primary Reserve sub-component). And, as a result of the Code of Service Discipline proceeding, it appears that he was ineligible for full-time engagemment on Class B service.[6]
Cpl Calderon’s guilty plea was presumably the product of Crown resolution negotiations between the military prosecutor and the defence counsel. I draw this conclusion based upon the fact that the judgment from Colonel Strickey focused on the joint submission from counsel. Joint submissions following guilty pleas tend to be indicative of such negotiations.
As Colonel Strickey indicated early in his judgment, a joint submission on sentence severely limits the Court’s discretion in the determination of an appropriate sentence” “… a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.”[7]
Consequently, it will be rare when a trial judge derogates from a joint submission. However, Colonel Strickey did just that; and his reasons for doing so are compelling.
The joint submission recommended to the court martial a sentence of reduction in rank to the rank of private, a reprimand, and a driving prohibition order for one-year pursuant to subs 320.24(4) of the Criminal Code.[8]
It was the last of these orders – the driving prohibition – that was a principal focus of discussion in Colonel Strickey’s judgment, and which we will discuss in the present Blog post.
Counsel argued that a court martial has the jurisdiction to issue this order through subpara 130(2)(b)(i) of the NDA.[9] Counsel also noted that such orders have not yet been issued by a court martial.[10]
Alive to the novelty of this submission, the military judge queried whether counsel would recommend an alternative submission in the event that he concluded that the court martial did not have jurisdiction to grant such a prohibition:
… Counsel stated that the joint submission on sentence remains the same with one caveat; should the Court determine that it does not have the jurisdiction to grant a driving prohibition order, that the Court note in the reasons that Cpl Calderon has been convicted and sentenced for the offence of dangerous operation of a motor vehicle contrary to section 130 of the NDA (subsection 320.13(1) of the Criminal Code). Counsel opined that such a conviction would likely result in a provincial administrative sanction; namely, the suspension of Cpl Calderon’s Ontario driver’s licence for one year.[11]
Colonel Strickey eventually sentenced Corporal Calderon to reduction in rank and a reprimand.[12] He declined to issue the order for a driving prohibition for want of jurisdiction.[13]
It is my understanding that the Director of Military Prosecutions (DMP) is appealing the judgment on behalf of the Minister.
While I am tempted to make a glib comment that military prosecutors must have an excess of time on their hands since they are no longer (generally) prosecuting sexual assault allegations, I suspect the reason for the appeal is more tactical.
This is a novel issue. Counsel in both the Canadian Military Prosecution Service (CMPS) and Defence Counsel Services (DCS) regularly test the limits of the military justice system. And that is often not a ‘bad thing’. We frequently define, or refine, the scope, limits, and procedures of a justice system through appellate review. And I suspect that the intent here is to do just that.
This matter represented an uncommon derogation from a joint submission. The principal governing judgment from the Supreme Court of Canada (SCC) on joint submissions – R v Anthony-Cook, 2016 SCC 43 – arose from a joint submission that was rejected by the trial judge (who increased the punishment imposed on the offender). The offender appealed. And, as a result of that appeal, we now have a judgment, from Canada’s apex court, that offers detailed guidance to both judges and litigators regarding the nature, and review, of joint submissions. Regardless of the outcome, Code of Service Discipline litigators will benefit from the jurisdictional certainty arising from appellate review of this matter.
Nevertheless, I anticipate that the judgment at first instance will be upheld by the CMAC. And this appellate review may well shed greater light on the significance of the role of military justice – “… to maintain the discipline, efficiency, and morale of the CF …” – and how that distinguishes it from Canada’s criminal justice system. It may represent an object example of incrementalism in the development of legal theory, further refining the bounds of the military justice system. And, for that reason, it is worth examining that distinction in the context of this judgment.
Role and Purpose of the Military Justice System
Not surprisingly, Colonel Strickey commenced his judgment with a description of the role and purpose of the military justice system: “Canada’s separate system of military justice is designed to ‘foster discipline, efficiency, and morale in the military’.”[14]
That mantra is repeated in military justice scholarship and judgments like it is the universal cure-all for everything that ails the CF.
It isn’t. Sometimes it’s a placebo. And sometimes it isn’t mentioned at all, particularly when so-called ‘administrative processes’ are easier for the chain of command to employ, and are subject to delayed judicial scrutiny and, when such scrutiny is eventually applied, it is typically limited to deferential ‘reasonableness review’[15]. In other words, CF decision-makers cherry-pick when they use the Code of Service Discipline to punish subordinates – or to “maintain the discipline, efficiency, and morale of the CF …” – and when they use less rigorous, less transparent, and less reliable ‘administrative’ processes.
However, that mantra does get trotted out every time someone wishes to justify the use of the military justice system (even though it is conveniently ignored when someone wishes to exercise discretion to use administrative processes, or to lay charges in the civilian criminal justice system …).
Occasionally, it can be a double-edged sword. And this is one such circumstance.
The role and function of Canada’s criminal justice system – enacted in legislation by Parliament[16], but administered by the provinces[17] – is described by Public Safety Canada as follows:
The criminal justice system (CJS), a cornerstone in our democracy, is a key component in maintaining law and order in society and the overall prosperity of Canada. The CJS aims to reduce crime and its harmful effects through a continuum of prevention, policing, courts, corrections, and reintegration. The CJS is a complex policy space with many involved actors and shared jurisdiction with provinces and territories. The federal jurisdiction extends to criminal law, federal corrections, and conditional release. Provincial jurisdiction includes policing, prosecutions and administration of justice. Victim services and crime prevention programming operate in both jurisdictions and criminal records may fall into all jurisdictions.[18]
It is a complex mosaic. However, put another way, one might state that the Canadian criminal justice system is intended to maintain a peaceable society through a system that apprehends, prosecutes, defends, sentences, rehabilitates and reintegrates those who are accused or convicted of illegal activity.[19]
It is not entirely dissimilar to the military justice system, but there are notable differences.
And we must remember that members of the CF – including very senior leaders, military judges, DMP and the JAG – remain subject to the concurrent jurisdiction of the Canadian criminal justice system notwithstanding that the military justice system applies to them as well.[20] [Although, as I have observed before, it is practically impossible to prosecute DMP and the JAG by court martial under the Code of Service Discipline – but that doesn’t stop people from insisting that military judges must be subject to the Code of Service Discipline.]
Courts Martial are Statutory Courts
We must remember, too, that courts martial are statutory courts.[21] They are not “section 96 courts”[22] with inherent jurisdiction. Their jurisdiction is derived from and under the NDA. In the Code of Service Discipline, it is consistently suggested that the NDA presents a ‘complete code’. Well … it’s actually not a complete code, and that’s part of the problem.
The Code of Service Discipline incorporates “… any offence under an Act of Parliament …” as a service offence by virtue of s 130 of the NDA. But that provision is principally limited to incorporating offences, not processes.
Purportedly, the NDA, amplified by regulations enacted by the Governor in Council and the Minister (and found, generally, in Volume II of the QR&O) provides for a complete code – including process – for the Code of Service Discipline.
Anyone who has been paying attention to military justice over the past five years or so (or longer) will be acutely aware that there are several processes from the Criminal Code that have been incorporated into the Code of Service Discipline, often with little explanation offered to the public.
For example, back when sexual assault was more frequently prosecuted under the Code of Service Discipline, applications under sections 276 and 278.3 featured regularly in court martial proceedings. These applications related to, respectively: (a) seeking permission to cross-examine a complainant on prior sexual activity where such evidence was relevant and did not rely on the ‘twin myths’; and, (b) production of records relating to a witness sought by an accused. Other processes from the Criminal Code have been incorporated into military justice proceedings; these are but two examples.
Courts martial also have general powers vested in them by virtue of s 179 of the NDA:
179 (1) A court martial has the same powers, rights and privileges — including the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to
(a) the attendance, swearing and examination of witnesses;
(b) the production and inspection of documents;
(c) the enforcement of its orders; and
(d) all other matters necessary or proper for the due exercise of its jurisdiction.
(2) Subsection (1) applies to a military judge performing a judicial duty under this Act other than presiding at a court martial.
However, counsel before the court martial in Calderon did not rely on this provision for their argument.[23] (Nor would I suggest that it would provide the desired jurisdiction.)
Much as Part III of the NDA defines both service offences and processes for the military justice system, the Criminal Code is not limited to the enactment of criminal offences. A significant portion of the Criminal Code is dedicated to process and elements of jurisdiction. And these are pertinent to the provincial courts – which are also statutory courts without inherent jurisdiction – that preside over the majority of criminal prosecutions.
However, the military justice system has gaps in its process, particularly when it is dealing with criminal offences incorporated into the Code of Service Discipline under s 130 of the NDA. Section 130 does not incorporate processes enacted in the Criminal Code, and which are intended to be used in prosecuting specific offences (like sexual assault). These processes are not incorporated as part of the offence.
However, many of those processes have been incorporated into the military justice system, often without a party – which would typically be the accused – challenging the jurisdiction or inclusion of those processes. And the bases for incorporating such processes into the Code of Service Discipline are typically cited as s 179 of the NDA, supra, and art 101.04 of the QR&O (a Ministerial regulation):
When in any proceedings under the Code of Service Discipline a situation arises that is not provided for in QR&O or in orders or instructions issued to the Canadian Forces by the Chief of the Defence Staff, the course that seems best calculated to do justice shall be followed.
And it is not surprising that DCS did not challenge the incorporation of the process under s 276 of the Criminal Code into the Code of Service Discipline when allegations of sexual assault were prosecuted before courts martial. The NDA and QR&O did not provide a process, and some form of process was necessary.
But punishments are another matter.
The scale of punishments for service offences is established at s 139 of the NDA.
And they do not include driving prohibitions.
They also don’t include probation.
And, as an aside, s 203.8 of the NDA only permits Absolute Discharges. Which is odd, since Conditional Discharges are far more common in the civil criminal justice system. But Conditional Discharges are not available as a disposition upon a finding of guilt under the Code of Service Discipline.
So, the operative issue in Calderon was whether the military judge could impose an order, which would normally be within the jurisdiction of a civil court under the Criminal Code, but which is not expressly provided under the NDA.
Back to R v Corporal Calderon …
Counsel before Colonel Strickey (and I suspect that it was principally counsel from DMP) argued that the military judge could issue the prohibition order through subparagraph 130(2)(b)(i) of the NDA.[24] That provision reads as follows:
(2) Subject to subsection (3), if a court martial convicts a person under subsection (1), it shall,
…
(b) in any other case,
(i) impose the punishment prescribed for the offence by Part VII, the Criminal Code or that other Act …
I would not presume to improve upon Colonel Strickey’s comprehensive review of relevant factors offered in paras 30 to 50 of his judgment, and I commend those passages to the readers of this blog. Two of the concluding paragraphs in his judgment capture the crux of the issue:
[46] Returning to the joint submission, counsel stated that, “We cannot cherry-pick which provisions in Part VIII.1 of the Criminal Code we apply at courts martial” (joint submission, paragraph 17). I agree. A review of the applicable jurisprudence and legislative history does not support the argument that courts martial have the authority to order a driving prohibition pursuant to subsection 320.24(4) of the Criminal Code.
[47] Courts martial are statutory courts and, using the wording from the Chief Military Judge in R. v. Tarso, 2022 CM 5013 at paragraph 41 “courts martial . . . draw their authority from the statute that creates them.” As a statutory court, courts martial are limited in their authority to powers provided by Parliament. While Parliament has, over time, granted courts martial with sentencing authority over similar punishments and orders in the Criminal Code such as DNA orders, SOIRA orders and restitution orders, they have not done so in the context of a driving prohibition order. I further note that in Tarso, the prosecution in that case submitted that it was section 179 of the NDA that was the basis for the two Criminal Code orders being sought; and I note that section 179 of the NDA was not argued before the Court in this joint submission.
I must admit that the comment at para 46 caused me to smile, ironically. There has been a great deal of ‘cherry-picking’ going on under the Code of Service Discipline over the past few years – most of it in the guise of the ‘exercise of discretion’ that is rarely challenged before independent courts of competent jurisdiction (often because it would be markedly difficult for the affected individual to challenge such exercises of discretion).
Before the bifurcation of the Code of Service Discipline on 20 June 2022, such ‘cherry-picking’ included:
- Laying charges limited to those for which the right of election for court martial could be lawfully withheld, even if ‘electable’ service offences might be more appropriate;
- Where a mix of charges are laid, which included some that could give rise to an election for trial by court martial, choosing to proceed only with those that were “unelectable”; or,
- Perhaps the most disingenuous action – when charges were laid, some of which gave rise to an election for trial by court martial, and the accused elected trial by court martial, DMP then ‘non-preferred’ the ‘electable’ offences, and then referred the remaining ‘unelectable’ charges back to the chain of command for trial by summary trial.
And don’t get me started on the practice of unreasonably and unlawfully withholding elections for court martial in relation to charges under s 129 of the NDA based upon a problematic interpretation of what was then art 108.17 of the QR&O.[25]
With the bifurcation of the Code of Service Discipline, the issue of election for court martial no longer arises. Instead, discretion (aka “cherry-picking”) is exercised when charge layers choose to lay charges for service infractions, which are triable only before summary hearings (and which lack many of the safeguards arising at court martial), even if the allegations are objectively serious (such as aggravated assault or assault causing bodily harm).
Distinction Between Military and Criminal Justice Systems
At para 48 of his judgment, Colonel Strickey offers an apt observation:
[48] Given the concurrent jurisdiction with the civilian criminal justice system, the option remains available for the appropriate authorities in the future to proceed with charges in that system should the prosecution seek an ancillary order such as a driving prohibition. While not directly related to the case before the Court, I note that the cases of R. v. McEachern, 2003 ABQB 87 and R. v. Vollick, 2000 ABPC 10 are examples of charges related to driving offences against military members brought in the civilian criminal justice system.
[NB: in both R v McEachern and R v Vollick, the accused would have been subject to the Code of Service Discipline at the time of the offences that were prosecuted before civil courts of criminal jurisdiction. The offences in both matters occurred on Defence establishments (although, in R v Vollick, the offence also appears to have occurred in civilian environs as well).]
Recalling that the role and purpose of the civilian criminal justice system differs from that of the military justice system, Colonel Strickey’s conclusions are consistent with the themes of appellate judgments that rely upon the “… maintenance of discipline, efficiency, and morale of the CF …” mantra.
The driving prohibition sought in the joint submission, and which, presumably, is the basis for the anticipated DMP appeal, is intended as a measure to protect the public and to provide the offender with time to rehabilitate before he is permitted again to operate motor vehicles on public roads. Such prohibitions are typically not permanent (though some can be imposed for extended periods of time). But the Code of Service Discipline is not focused principally on protection of the public, though that can be a relevant factor for sentencing. Nor is its purpose principally related to enforcement of a peaceable society.
As Colonel Strickey observed, if the CMPS, and the chain of command, wanted the full panoply of civilian criminal justice to apply to Cpl Calderone, they could have exercised their discretion to have the charges laid in that system. Of course, they would then lose a measure of control over the process.
Parliament has created two separate systems of justice for two separate, though related, objectives. By opting to use the military justice system, the chain of command, the military police, and the CMPS have opted to employ a system intended to maintain the discipline, efficiency, and morale of the CF.
Remember: no cherry-picking.
And we have to recall that the Code of Service Discipline is but one tool available to maintain the discipline, efficiency, and morale of the CF.
If Pte Calderon’s (as he now is) chain of command perceive that he is, at present, unfit, to operate DND/CF vehicles, it falls within their scope of authority to suspend his DND 404 driving permit. They may have already done so as an ‘administrative decision’. That action won’t apply to his provincially-issued driver’s permit (on the assumption that he has one), but the Province of Ontario does not have a direct stake in the maintenance of discipline, efficiency, and morale of the CF.
Pte Calderon’s chain of command could even place him on Initial Counselling, a Recorded Warning, or Counselling and Probation for up to six months under DAOD 5019-4, Remedial Measures. They may have even done so already (although such information, unlike a prosecution under the Code of Service Discipline, is not typically published notoriously).
And, unlike orders arising under the Sex Offender Information and Registration Act (SOIRA)[26] or the DNA Identification Act[27], Parliament has not expressly granted authority for courts martial to issue driving prohibition orders.
I suspect that some people, including some military prosecutors, might be inclined to suggest that there is a compelling policy-based argument that offences of the nature prosecuted in Calderon should be prosecuted under the military justice system, and that it is counter-intuitive to suggest that, if they want all aspects of the Criminal Code to apply, they should opt for the civilian criminal justice system.
There may be some merit in such a position. However, I suggest that there is a 2-part rebuttal to such an argument.
First, that sounds a wee bit like a ‘military nexus’ argument. And if the CMAC didn’t hammer the last nails into the coffin of the ‘military nexus test’ in R v Reddick 1996, 5 CMAR 485, then that objective had certainly been accomplished in R v Royes, 2016 CMAC 1 (relying on R v Moriarity, 2015 SCC 55), and confirmed by the SCC in R v Stillman, 2019 SCC 40.
Second, the military police and DMP purportedly have been exercising their discretion to cause (most) sexual assault allegations against CF members to be prosecuted before civil courts of criminal jurisdiction, rather than courts martial, even if the allegations involve only CF personnel and purportedly arose within Defence establishments. At least, the Joint Statement by DMP and the CFPM in early November 2021 appeared to suggest that they came to this conclusion on their own, and, according to the response that the Military Police Complaints Commission received from the Minister’s office, there was no express direction from the current or previous Minister of National Defence to that effect. Because that would have been inconsistent with the proper avenues and nature of direction that Parliament has established under the NDA.
Although “cherry-picking” – or, to be more precise, unprincipled arbitrary exercise of discretionary powers or functions – is bad, discretion can be exercised in furtherance of justice. Such discretion is exercised regularly under the Code of Service Discipline, or even the NDA generally. Granted, sometimes the exercise of discretion is not explained in a meaningful or transparent manner. Sometimes, the exercise of discretion is explained using rote characterization such as “… we determined that it was in the interests of justice to …” do something.
And, according to the majority of the SCC in R v Edwards, 2024 SCC 15, we should not be overly vexed by the lack of transparent explanation for the exercise of statutory powers manifested as prosecutorial discretion, notwithstanding the warnings offered by Justice Cory in R v Bain, [1992] 1 SCR 91 and Chief Justice McLachlin (as she then was) in R v Nur, 2015 SCC 15.
Conclusion
Colonel Strickey’s judgment in Calderon provides an object example of the limits of jurisdiction and the consistent application of the principal theory underlying the legitimacy of the military justice system. And it is worth noting that, based upon numeration of the judgment, this was Colonel Strickey’s first judgment handed down as a military judge. It is no small matter that, in his first judgment, Colonel Strickey faced a circumstance in which he was required, in the interests of justice, to depart from a joint submission on sentencing – an uncommon outcome for a judge at first instance.
It appears that, in due course, the military legal community will benefit from the direction and clarification of the CMAC on this issue.
[1] National Defence Act, RSC 1985, c N-5 [NDA], s 9.2.
[3] From the numbering, this appears to have been Colonel Strickey’s first judgment as a military judge.
[4] It appears that both charges arose out of the same incident. And, while I am curious how the factual circumstances would justify the finding of guilt for both offences – which are markedly similar in their constituent elements – notwithstanding the principle in Kienapple v R, [1975] 1 SCR 729, that issue is not the focus of the present commentary.
[5] R v Corporal Calderon, 2024 CM 7001, para 60 [Calderon].
[7] R v Anthony-Cook, 2016 SCC 43, para 32; R v White, 2024 CM 4002.
[9] I note that, at para 3 of his judgment, Colonel Strickey cites “… subparagraph 130(2)(b)(ii) of the NDA …”. That provision relates to the punishment of dismissal with disgrace from [His] Majesty’s service or less punishment, which would not be relevant to this discussion. However, the balance of the judgment focuses on subpara 130(2)(b)(i) of the NDA. I suspect that the initial reference to para 130(2)(b)(ii) was either a typographical error in the judgment or an error in counsel’s submissions.
[14] Id, para 10; see also: R v Généreux, [1992] 1 SCR 259 [Généreux], 293 to 297, which, regarding this principle, has arguably been eclipsed by R v Stillman, 2019 SCC 40 [Stillman], paras 35 and 36 and R v Edwards, 2024 SCC 15 [Edwards] para 15.
[15] Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], paras 16 and 17; Bond-Castelli v Canada (Attorney General), 2020 FC 1155, paras 29 to 31.
[16] The Constitution Act, 1867, 30 & 31 Vict, c 3 [Constitution Act, 1867], s 91.27.
[18] Government of Canada, Public Safety, “Criminal Justice System” (last modified 23 November 2023), online: < https://www.publicsafety.gc.ca/cnt/trnsprnc/brfng-mtrls/trnstn-bndrs/20231123-2/05-en.aspx >.
[19] Government of Canada, Department of Justice, “State of the Criminal Justice System Dashboard” (last modified 11 June 2024), online: < https://www.justice.gc.ca/socjs-esjp/en/dash-tab/lm-sp >.
[20] Stillman, n 14.
[21] R v Master Warrant Officer MacPherson, 2021 CM 2014, para 49; Calderon, n 4, para 47. See also: R v Lloyd, 2016 SCC 13, paras 15 to 20.
[22] Constitution Act, 1867, n 16, s 96.
[24] See n 9, supra.
[25] Noonan v Canada (Attorney General), 2023 FC 618.
[26] Sex Offender Information Registration Act, SC 2004, c 10 [SOIRA].
[27] DNA Identification Act, SC 1998, c 37.
