The Court Marial Appeal Court of Canada’s Dec. 9 ruling in R. v. J.L., 2024 CMAC 10 involves a young, non-commissioned member of the Canadian Armed Forces’ (CAF) reserve unit who was charged in 2020 with sexually assaulting another young service member.
The accused, identified as J.L., was 17 at the time, as was the female complainant.
The issue before the Appeal Court was whether J.L. — a member of the CAF and thus subject to the National Defence Act (NDA) and its Code of Service Discipline (CSD) — should benefit from the Youth Criminal Justice Act (YCJA) — legislation used in civilian justice to take into account a minor’s lack of maturity and potential for rehabilitation.
Up top, the Appeal Court acknowledged that the YCJA grants minors “procedural and substantive rights” not found in the NDA.
According to a federal government web page, a minor can join Canada’s military if they are at least 17 years old, have their parents’ permission and are a citizen or permanent resident. Certain educational conditions may also need to be met. (Those enrolling as officers may be 16, but conditions apply.)
The case dates back to May 8, 2020, when J.L. and the complainant, along with others, spent the night socializing in the “smoke pit” of an “accommodation building” on a base.
Just after midnight, the complainant, also a non-commissioned member, decided to go back to her room and turn in for the night. Unbeknownst to her, J.L. allegedly followed her and entered the room behind her, shutting the door.
The complainant “took a couple of steps forward to open the door” but J.L. allegedly “pushed her up against a ladder” and used his weight to keep her there.
“There was a significant size and weight difference between them,” states the appeal decision. “J.L. tried to kiss her. [The complainant] told him to stop multiple times. She was finally able to push him away and told him to get out. Undaunted, J.L. approached her from behind and wrapped his arms around her body and then kissed her neck, leaving a mark. She gave him three elbow blows to the gut and told him to ‘get the fuck out’ before he would leave.”
The complainant went to military police about it a short time later.
At trial, a military judge acknowledged the role of the YCJA in dealing with young offenders. However, the judge found that the NDA had sufficient “safeguards … to address a young person’s diminished moral culpability.” In September 2021, the judge deemed J.L. guilty of sexual assault and “behaving in a disgraceful manner,” as per the NDA and the CSD.
As a sentence, J.L. was handed an absolute discharge in April 2023.
According to Legal Aid Ontario, an absolute discharge is “the lowest‑level adult sentence that an offender can get.” A finding of guilt is made, but no conviction is registered, and the offender is not saddled with conditions, such as probation.
But J.L. appealed, challenging the constitutionality of the NDA. He argued it is “inconsistent with the principle of fundamental justice” that entitle young people “to a presumption of diminished moral culpability,” and that minors in the military “cannot be exempted from the provisions of the [YCJA].”
He contended that the NDA violated several of his rights as a young person, including its lack of an automatic publication ban and its lack of priorities when it comes to a young person’s “rehabilitation and reintegration.”
On the other side, military prosecutors maintained that “the principle of diminished moral culpability [found in the YCJA] has no application in the context of the CAF,” and that young members should not be treated differently than adult members.
They also argued that “young soldiers” deliberately choose to enter the military, need parental consent to do so and are made aware that they are liable for prosecution under the NDA and CSD.
“The prosecution maintains that these provisions amount to an express and informed waiver by young persons to the protections that are available to their civilian counterparts under the YCJA,” states the appeal decision.
But, in the end, the Appeal Court sided with J.L., staying the proceedings “on both charges.”
The Appeal Court found it to be “uncontroversial that young persons benefit from a presumption of diminished moral responsibility” — something that “has been held to be fundamental to the operation of a fair legal system.”
“While international instruments and practice do establish that persons under 18 may serve in the military, the examples before us do not clearly militate toward the conclusion that young military members do not benefit from the presumption of diminished moral culpability under either international law or in practice,” writes the court.
Comment from the defence and prosecution in this case was not received by press time.
Gordon Campbell, Aubry Campbell Maclean
“This is a very significant decision for the rights of young persons serving with the [CAF], who are able to join as young as 17 years of age, but who the Court Martial Appeal Court has rightly recognized should not be subject to a differential system of justice than all other young Canadians benefit from prior to their eighteenth birthdays under the Youth Criminal Justice Act,” said Campbell, a lawyer with Aubry Campbell Maclean, in Ontario.
Fellow lawyer Rory Fowler echoed these sentiments.
“The Code of Service Discipline … is a lawful and constitutionally valid derogation from the civilian criminal justice system, but it is not a constitutionally valid derogation from the youth criminal
Rory Fowler
“Just as the youth criminal justice system will, by default, take precedence over the normal criminal justice system, it will also take precedence over the military justice system. And there is a consistency to that approach: In the same way as the youth criminal justice system reflects a derogation from the typical justice system, it is also a derogation from the military justice system. … Because of the diminished moral responsibility of young persons, because of their vulnerability before any criminal justice system, the same rationales apply to the [CSD] as would apply to the civilian criminal justice system.”
If you have any information, story ideas or news tips for Law360 Canada, please contact Terry Davidson at t.davidson@lexisnexis.ca or 905-415-5899.