Reasons for Judgment — Fish J. (McLachlin C.J. and Binnie, Deschamps, Charron, Rothstein and Cromwell JJ. concurring)
Fish J. — The appellant appeals against a decision by the majority in the Court Martial Appeal Court of Canada (2010 CMAC 7, [2010] C.M.A.J. No. 7 (QL)) allowing the respondent’s appeal from the sentence imposed on him by the trial judge (2008 CM 3012 (CanLII)).
The appeal is brought as of right under s. 245(2) (a) of the National Defence Act , R.S.C. 1985, c. N‑5 , which provides that the Minister, or counsel instructed by the Minister for that purpose, may “appeal to the Supreme Court of Canada . . . on any question of law on which a judge of the Court Martial Appeal Court dissents”. Under this provision, unlike under the Criminal Code , R.S.C. 1985, c. C‑46 (ss. 691 to 693), a sentence may be appealed to the Supreme Court as of right. In matters governed by the Criminal Code , an appeal against sentence lies to the Court only under s. 40 of the Supreme Court Act , R.S.C. 1985, c. S‑26 , and only with leave of the Court (R. v. Gardiner, [1982] 2 S.C.R. 368, at pp. 402‑5).
In this case, Cournoyer J.A., who dissented in the Court of Appeal, would have dismissed the respondent’s appeal on the basis that, if the appropriate standard were applied, it was not open to the Court of Appeal to interfere with the trial judge’s decision.
After reviewing the record and hearing counsel’s submissions, we are satisfied that the dissent was on a question of law within the meaning of s. 245(2) (a) of the National Defence Act . Moreover, with all due respect for the majority of the Court of Appeal, we would allow the appeal for the reasons given by Cournoyer J.A. and would restore the sentence imposed by the trial judge.
Cases cited
- 2010 CMAC 7 2010 CMAC 7 ¶ 1
- 2008 CM 3012 2008 CM 3012 ¶ 1
- R. v. Gardiner 15806-1982-08-09 pp 402 ¶ 2