The National Defence Act’ appeal provisions and the Charter on criminal defence matters

Published On: Jul 26,2016

The Constitutionality of the Crown Prosecutor’s Appellant powers under Sections 230.1 and 245(2)National Defence Act were upheld by the Supreme Court of Canada in R. v. Cawthorne, 2016 SCC 32

Appeal Provisions The most recent decision from the Supreme Court of Canada that impacts the sphere of criminal lawyer and the trial practice of Criminal Defence Lawyers is the criminal law case:R. v. Cawthorne, 2016 SCC 32 (“Cawthrowne”).  This case deals with the Government of Canada’s ability to appeal decisions that are favourable to a criminal defendant within the scope of a particular section s. 245(2)(a) of the National Defence Act.

Facts of the Case

It dealt with the possession of illegally possessed (child) pornographic images held by an Ordinary Seaman (a Canadian Military Personal) at or clear Hawaii.  The images came to the attention of another officer when rendering efforts to ascertain the identity of the owner of the indexed phone.   When ‘swiping open’ the iPhone, the images on the screen should the illicit pornographic images.  Mr. Cawthrone was charged with possession of child pornography.  His defence was that the illicit images were inavdertenly on his phone and that he did not possess the requisite mens rea to possession those images (see para. 3) but his girlfriend testified and stated in examination in chief that she had several conversations with him wherein Mr. Cawthrowne stated that he told her that he had been arrested “for having inappropriate images on his phone”.   Furthermore, she also asked what types of images were on his phone. Her response, as she testified, was the following: “He said they were children and I believe that he said they were both male and female.” The Supreme Court of Canada decision relates that the defence lawyer’s cross examination was brief and centered on the theory that there was never an admission from the accused that he actually admitted to any alleged (similarly situated) offence.  The Crown Prosecutor in re-examination queried the girl-friend: “During any of those conversations, do you recall him saying that he did in fact do these things?” She said: “Yes.” (see para. 6).   The criminal defence lawyer, rightfully, objected to question.  The Trial Judge agreed and found her latter response to be inadmissible.  An application was made by the Criminal Defence Lawyer for a mistrial.  The military judge dismissed the motion and gave a further limiting instruction to the panel: I further instruct you that you shall not draw any inference against the accused . . . from that inadmissible evidence because it is both unreliable and prejudicial. I therefore instruct you to completely and absolutely ignore the inadmissible evidence and that you shall evacuate from your mind anything about it Regardless, the panel returned a verdict of guilty on both counts charged. On appeal, a majority of the Court Martial Appeal Court found that the mistrial ought to have been granted and ordered a new trial.

The Appeal by the Government form the Manitoba Court of Appeal granting Mr. Cawthrone’s Criminal Lawyers application to grant the said mistrial.

The Minister of National Defence (the “Minister”) appealed, as of right as per the provision in the National Defence Act, to the Supreme Court of Canada, pursuant to s. 245(2) of the National Defence Act, arguing that the military judge made no error in declining to grant a mistrial. Mr. Cawthrone’s criminal counsel brought a motion to quash the Minister’s appeal, on the basis that s. 245(2), which gives the Minister the authority to appeal to this Court, violates ss. 7 and 11(d) of the Charter. The question on this appeals was whether provisions of the National Defence Act that give the Minister the authority to appeal from decisions of a court martial or Court Martial Appeal Court infringe the right to liberty under s. 7 of the Charter, and if so, whether the limitation is justified under s. 1 of the Charter.It was also argued by criminal defence counsel that the law infringes the right to trial by an independent tribunal under s. 11(d) of the Charter.

Findings of the Court: Minister’s appeal is allowed and Sections 230.1 and 245(2) of the National Defence Act are constitutional

The Court made the following rulings, in representative part, in granting the Minister’s Appeal: The power that ss. 230.1 and 245(2) of the National Defence Act confer on the Minister — that is, to initiate an appeal — may effect a deprivation of liberty. Therefore, s. 7 of the Charter is engaged. The law recognizes as constitutional the principle that prosecutors must not act for improper purposes, such as purely partisan motives. This principle is a basic tenet of our legal system. It safeguards the rights of the individual and the integrity of the justice system, and it satisfies the criteria to be considered a principle of fundamental justice. A prosecutor — whether it be an Attorney General, a Crown prosecutor, or some other public official exercising a prosecutorial function — has a constitutional obligation to act independently of partisan concerns and other improper motives [see: Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, Miazga v. Kvello Estate, 2009 SCC 51, R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, andR. v. Power, [1994] 1 S.C.R. 601] The Minister, like the Attorney General or other public officials with a prosecutorial function, is entitled to a strong presumption that he exercises prosecutorial discretion independently of partisan concerns. The mere fact of the Minister’s membership in Cabinet does not displace that presumption (see para. 32). The law presumes that the Attorney General, also a member of Cabinet, can and does set aside partisan duties in exercising prosecutorial responsibilities, and there is no compelling reason to treat the Minister differently in this regard. Accordingly, Parliament’s conferral of authority over appeals in the military justice system on the Minister does not violate s. 7 of the Charter. As to the argument that the impugned provisions violate the right to an independent tribunal guaranteed by s. 11(d) of the Charter, it cannot succeed. The military judge in [Mr. Cawthrone’s] case did not err in declining to grant a mistrial. Once an error has occurred at trial, a trial judge may, in deciding whether to grant a mistrial, consider whether the error has been or can be remedied at trial. The decision of whether to grant a mistrial falls within the discretion of the judge, who must assess whether there is a real danger that trial fairness has been compromised. That discretion is not absolute, but its exercise must not be routinely second‑guessed by the court of appeal.