MLB-Slaw Selected Case Summaries

R. v. Gagnon (J.G.A.) 2016 CMAC 2

Tue, 26 Apr 2016 12:17:16 -0400

Armed Forces - Civil Rights - Criminal Law

Summary:
Gagnon and Thibault were charged with sexual assault. Court Martial proceedings ensued. Gagnon was acquitted. In Thibault’s case the Court Martial found that it had no jurisdiction over the charge of sexual assault because of a lack of sufficient military nexus. The Minister of Defence appealed the two decisions pursuant to s. 230.1 of the National Defence Act (NDA). Gagnon and Thibault applied to have the Minister’s appeals quashed and dismissed, arguing that the right to appeal had to be attributed to an independent prosecutor and that it was contrary to s. 7 of the Charter to confer it on the Minister.

The Court Martial Appeal Court allowed the appeals. Section 7 of the Charter protected the constitutional right of an accused to an independent prosecutor. The Minister of Defence could not reasonably be perceived as an independent prosecutor. Section 230.1 of the NDA, which conferred on the Minister the right to appeal, thus did not satisfy the constitutional requirement of prosecutorial independence. It was declared to be of no force and effect to the extent that its holder was not independent. The section could not be saved under s. 1 of the Charter. The court suspended the declaration of invalidity of s. 230.1 for six months. The court, however, refused to quash the appeals, but rather adjourned the appeals until after the suspension period for the declaration of invalidity of s. 230.1. Presumably, Parliament would by that time have passed the amendments deemed necessary to the NDA, thus granting Gagnon and Thibault the remedy sought (i.e., an independent prosecutor for the conduct of the appeal proceedings).

MLB-Slaw Selected Case Summaries

R. v. Gagnon (J.G.A.) 2016 CMAC 2

Daniels et al. v. Canada (Minister of Indian Affairs and Northern Development) et al. 2016 SCC 12

Carvery v. Nova Scotia (Attorney General) et al. 2016 NSCA 21

Commission scolaire de Laval et al. v. Syndicat de l'enseignement de la région de Laval et al. 2016 SCC 8

Lymer (Bankrupt), Re 2016 ABCA 32

R. v. McMillan (B.W.) 2016 MBCA 12

Spence Estate, Re 2016 ONCA 196

Police Complaint Commissioner (B.C.) v. Abbotsford Police Department et al. 2015 BCCA 523

Warman et al. v. Law Society of Alberta 2015 ABCA 368

Enmax Energy Corp. v. TransAlta Generation Partnership 2015 ABCA 383

Manager of Child, Youth and Family Services, Zone E (Nfld. and Lab.) v. J.T. et al. 2015 NLCA 55

Michela et al. v. St. Thomas of Villanova Catholic School 2015 ONCA 801

Tenny v. Ontario 2015 ONCA 841

Mwanri v. Mwanri 2015 ONCA 843

M.M. v. Canada (Minister of Justice) 2015 SCC 62

B010 v. Canada (Minister of Citizenship and Immigration) 2015 SCC 58

R. v. Appulonappa (F.A.) et al. 2015 SCC 59

Canadian Broadcasting Corp. v. Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc. et al. 2015 SCC 57

Tran v. Canada (Minister of Public Safety and Emergency Preparedness) 2015 FCA 237

Moore (Bankrupt), Re 2015 SCC 52