Her Majesty the Queen v. Ordinary Seaman Cawthorne
(Federal Court) (Criminal) (As of Right)
Canadian charter (Criminal).
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Charter of Rights and Freedoms – Criminal law – Mistrial – Independence of prosecutor - Whether s. 245(2) of the National Defence Act, R.S.C., 1985, c N-5 violates s. 7 or s. 11(d) of the Canadian Charter of Rights and Freedoms? – If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Charter? - Whether an error in law to dismiss motion for mistrial.
The respondent was convicted by a general court martial of possession of child pornography and accessing child pornography. The pornography was discovered on the respondent’s cellular phone by an individual who had found the phone and who had accessed its content in an attempt to find its owner. The respondent admitted to possessing the pornography, but denied that it was child pornography. The main issue at trial was whether the respondent knowingly accessed and possessed child pornography. The respondent appealed his conviction arguing, among other things, that the military judge erred by failing to grant a mistrial after certain inadmissible evidence was given by a Crown witness. A majority of the Court Martial Appeal Court allowed the appeal and ordered a new trial. Veit J.A., dissenting, would have dismissed the appeal.
The respondent filed a motion to quash the notice of appeal on the basis that paragraph 245(2) of the National Defence Act violates ss. 7 and 11(d) of the Charter. The constitutional issues are based on the argument that s. 245 violates an accused’s rights to be tried by an independent prosecutor before an independent tribunal, since the right of appeal is conferred on the Minister of National Defence, or counsel instructed by the Minister.
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