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The Supreme Court of Canada is seen in Ottawa on Oct. 11, 2018.Justin Tang/The Canadian Press

The Supreme Court of Canada has refused to temporarily suspend a lower court’s bombshell ruling in a sexual-assault case that the military justice system is unconstitutional.

A five-judge panel rejected military prosecutors’ request for a stay on Monday after the prosecution tangled with defence lawyers over whether discipline within the Canadian Forces would suffer if September ruling were allowed to stand.

The case in question dates back to December 2014 when military police charged an Edmonton-based soldier, Master Cpl. Raphael Beaudry, with one count of sexual assault causing bodily harm.

The Charter of Rights and Freedoms says anyone accused of a crime that carries a maximum sentence of five or more years can request a trial by jury — except in cases involving military law tried before military tribunals.

A special provision in the National Defence Act, which regulates the Forces, says if a serving member is accused of a civilian offence such as sexual assault or murder, the case can be handled under military law even if the alleged offence is not related to the accused’s military service.

When Beaudry asked that his case be heard by a jury, his request was denied and he was found guilty via court martial.

The Court Martial Appeals Court found in September that “civil offences are not offences under military law” — meaning Beaudry and others charged with serious Criminal Code offences should be allowed to stand trial by jury.

Beaudry is far from the first to challenge the constitutionality of the military justice system, but those previous cases were all rejected by the lower courts.

The Supreme Court is scheduled to hear Beaudry’s case in March. Military prosecutors had asked that it suspend the lower court’s ruling until the top court issues a final decision on the matter.

Defence officials say 35 cases — including 21 sexual assaults — have been left in limbo as a result of the appeals court ruling.

“The ability to maintain discipline, efficiency and morale in the Canadian Forces is seriously degraded if the stay is not granted or if we start transferring cases to the civilian system,” military prosecutor Lt.-Col. Anthony Tamburro told the court.

Military police and prosecutors do have the option to transfer cases to the civilian system but Tamburro said Crown prosecutors there might take a different view from military counterparts on whether to proceed with certain cases.

“So what might constitute a minor sexual assault … that civilian Crowns might not deal with, we might,” he said. “If the accused person is a commanding officer and the victim was one of the subordinates, there’s a real effect on discipline.”

But Cmdr. Mark Letourneau, one of the military defence lawyers representing Beaudry, countered that there was no evidence discipline would suffer if the stay were not granted.

He also questioned why military prosecutors had not started transferring some of the cases affected by the appeals-court ruling to the civilian courts so they could proceed, noting that a trial in the civilian system “is a valid trial.”

Following the court’s decision to reject the request for a stay, the Canadian Forces’ top prosecutor sought to reassure service members and the public of the continued effectiveness of the military justice system.

“We will continue to consider all possible options to ensure that any impacted cases move forward expeditiously and are prosecuted to the fullest extent of the law,” Col. Bruce McGregor said in statement. “The interests of victims and survivors remain my highest priority. I will continue to ensure that they are actively informed and consulted in all cases.”

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