R. v. Cawthorne (Constitutional law — Charter of Rights — Fundamental justice)

On appeal from a judgment of the Court Martial Appeal Court of Canada, 2015 CMAC 2, 2015.

C was charged with two child pornography offences. At trial, defence counsel objected to re‑examination evidence given by C’s former girlfriend. The military judge ruled that it was inadmissible and advised the jury panel to disregard it, but C brought a motion for a mistrial on the basis of the prejudice arising from it. The military judge dismissed the motion and gave a further limiting instruction to the panel. C was found guilty. 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 Minister of National Defence (the “Minister”) appeals as of right to this Court, pursuant to s. 245(2) of the National Defence Act, arguing that the military judge made no error in declining to grant a mistrial. C brings 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.

G and T were each charged with sexual assault. G was acquitted and the Minister appealed, seeking a new trial. T presented a plea in bar of trial, on the basis that the matter was not under military jurisdiction because of an insufficient nexus with military service. The military judge allowed the plea and the Minister appealed. G and T brought motions to quash the Minister’s appeals on the basis that s. 230.1 of the National Defence Act, which gives the Minister the authority to appeal to the Court Martial Appeal Court, violates s. 7 of the Charter. The Court Martial Appeal Court dismissed the motions to quash but agreed that s. 230.1 should be invalidated, as it violates the right to an independent prosecutor. The Minister appeals to this Court.

Held (9-0): The motion to quash should be dismissed and the appeals should be allowed. Sections 230.1 and 245(2) of the National Defence Act are constitutional.

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.

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. 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 C’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.

Reasons for Judgment by McLachlin C.J. (Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. concurring)

Neutral Citation: 2016 SCC 32

Docket Numbers: 36466, 36844