ARMED FORCES
Appeal from Federal Court’s refusal (2006 FC 1532) to compel Chief Military Judge (CMJ) to assign military judge, require Court Martial Administrator (CMA) to issue order convening court martial—Accused, warrant officer serving in Joint Task Force 2 (JTF 2), special operations unit for counter-terrorism operations—Information about JTF 2 members protected from public release under national defence policy—Charged with aggravated assault in Afghanistan—CMJ refused to assign military judge since accused’s charge sheet, documentation classified “Secret”—Appeal allowed—Open-court principle not absolute—Balancing exercise must be conducted by independent decision maker to determine whether principle outweighs interests sought to be protected by preventing information from being disclosed—National Defence Act, R.S.C., 1985, c. N-5, s. 180(2), Queen’s Regulations and Orders for the Canadian Forces, s. 112.03(2) permitting in camera hearings where public safety or defence concerns exist—Policy not preventing convening order from identifying accused, without association with JTF 2, since accused’s identification not classified information—Sealing charge briefly by DMP to allow military judge to assess issue of confidentiality not offending open-court principle.
Canada (Director of Military Prosecutions) v. Canada (Court Martial Administrator) (A-53-07, 2007 FCA 390, Noël J.A., judgment dated 10/12/07, 22 pp.)