Master Corporal C.J. Stillman, et al. v. Her Majesty the Queen, et al.
(Federal Court) (Criminal) (By Leave)
Constitutional law - Criminal law, Offences, Military offences, Appeals - Canadian Charter of Rights and Freedoms – Criminal law – Offences – Constitutional law - Military offences - Right to jury – Appeals – Stare decisis – In R. v. Royes, 2016 CMAC 1, Court Martial Appeal Court decided that s. 130(1)(a) of National Defence Act, R.S.C. 1985, c. N-5, did not violate s. 11(f) of Canadian Charter of Rights and Freedoms - Leave to appeal refused - Whether that decision is binding.
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In R. v. Moriarity,  3 SCR 485, a constitutional challenge based on s. 7 of the Charter to s. 130(1)(a) of the National Defence Act was dismissed. The Supreme Court left open the question whether s. 130(1)(a) violates s. 11(f) of the Charter (which protects the right to a jury trial for anyone charged with an offence where the punishment would be five years or more imprisonment “except in the case of an offence under military law tried before a military tribunal.”)
Following the decision in Moriarity, a constitutional challenge against s. 130(1)(a) was brought by in the Court Martial Appeal Court specifically on the basis that it violated s. 11(f) of the Charter. The Court Martial Appeal Court rejected the challenge: R. v. Royes, 2016 CMAC 1. Leave to appeal was denied.
The cases that have given rise to this appeal were all in the system at the time that Moriarity and Royes were being decided. The Court Martial Appeal Court concluded it was bound by its decision in Royes and dismissed the Appellants’ constitutional challenges to s. 130(1)(a).
After the Supreme Court of Canada granted leave to appeal, the Court Martial Appeal Court declared the provision to be of no force and effect: R. v. Beaudry, 2018 CMAC 4. An appeal as of right has been filed by the Crown in the Beaudry case (file 38308).
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