Her Majesty the Queen, et al. v. Warrant Officer J.G.A. Gagnon, et al.
(Federal Court) (Criminal) (By Leave)
Canadian charter (Criminal) - Fundamental justice (s. 7), Appeals, Courts, Jurisdiction.
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Charter of Rights - Fundamental justice - Prosecutorial independence - Appeals - Courts - Jurisdiction - Judgments and orders - Stay of execution - Whether s. 230.1 of National Defence Act, R.S.C. 1985, c. N-5, infringes s. 7 of Canadian Charter of Rights and Freedoms - If so, whether infringement is reasonable limit prescribed by law that can be demonstrably justified in free and democratic society under s. 1 of Charter - Whether s. 230.1 of National Defence Act infringes s. 11(d) of Charter - If so, whether infringement is reasonable limit prescribed by law that can be demonstrably justified in free and democratic society under s. 1 of Charter - Whether stay of execution of Court of Appeal’s declaration of invalidity should be ordered pending this Court’s decision on constitutional questions raised in this case.
The two respondents, who were members of the Canadian Forces, were charged with sexual assault in two separate cases and were successful at trial. When the appellant appealed the verdicts, the respondents brought motions to quash and dismiss the appeals on the basis that s. 230.1 of the National Defence Act is inconsistent with the constitutional requirement of prosecutorial independence. The Court Martial Appeal Court held that s. 230.1 is invalid. The declaration of invalidity was suspended for a six-month period ending on June 21, 2016. The respondents’ motions to quash and dismiss the appeals were dismissed, however, and the hearing of the appeals on the merits was adjourned to a date to be determined after the expiry of the period during which the effect of the declaration of invalidity was suspended.
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