## Facts

- Multiple members of the Canadian Armed Forces were charged under National Defence Act (NDA) § 130(1)(a), which treats offences under federal statutes (including serious Criminal Code offences) as “service offences” triable in the military justice system.
- The charges included serious “civilian” crimes such as sexual assault and forgery, carrying potential maximum penalties of five years’ imprisonment or more.
- The accused sought jury trials, arguing that the Canadian Charter’s jury guarantee applied because the offences were essentially civilian crimes and military panels are not juries.
- Courts martial proceeded without juries, consistent with the military justice system’s structure.
- Conflicting appellate rulings emerged: one upheld constitutionality and denied a jury right; another found that denying a jury for serious civilian offences violated the Charter.
- The Supreme Court of Canada consolidated the appeals to resolve whether NDA § 130(1)(a) is constitutional as applied to serious civilian offences tried by military tribunals without juries.

## Issues

1. Whether NDA § 130(1)(a), as applied to serious federal criminal offences, violates the Charter right to trial by jury for offences punishable by five years’ imprisonment or more.
2. Whether an offence prosecuted as a “service offence” under NDA § 130(1)(a) is an “offence under military law tried before a military tribunal” within the Charter’s military exception to the jury-trial guarantee.

## Decision

- The Court (majority) upheld NDA § 130(1)(a) and dismissed the service members’ constitutional challenges.
- The Court held that offences prosecuted under NDA § 130(1)(a) are “offences under military law” when tried in the military justice system, even if the underlying conduct mirrors Criminal Code offences.
- Because these prosecutions fall within the Charter’s military exception, the accused had no Charter right to a jury trial before a military tribunal.
- The Court allowed the Crown’s appeal in the case where the lower court had found a Charter breach, resolving the conflict in favor of a broader reading of the military exception.
- A dissent would have limited the military exception to “truly” or “purely” military offences and would have held NDA § 130(1)(a) unconstitutional to the extent it denies juries for serious civilian offences.

## Legal Principles

- The Charter’s jury-trial guarantee for serious offences is expressly limited where the prosecution is for “an offence under military law tried before a military tribunal.”
- Parliament may constitutionally establish a separate military justice system and define “service offences” that incorporate federal statutory offences for persons subject to military discipline.
- An offence need not be “exclusively” military in nature to qualify as an “offence under military law” for purposes of the Charter’s military exception; validly created service offences tried by military tribunals can fall within the exception.
- The absence of civilian juries in military tribunals does not, by itself, create a Charter violation where the military exception applies.

## Conclusion

The Court sustained Parliament’s authority to prosecute service members in the military justice system for incorporated federal criminal offences without a jury, holding that such prosecutions fall within the Charter’s military exception and do not violate the jury-trial guarantee.


Stillman v. Her Majesty the Queen, 2019 SCC 40 (Can. 2019)