R. v. D.R.L.

R. v. D.R.L.

The Provincial Court lacks jurisdiction because s.273 NDA must be applied consistently with Canada’s SOFA obligations; Germany held primary jurisdiction for these offences and that primary jurisdiction was not waived to Canada and became effectively vested in Germany after the expiration of the service‑tribunal limitation (s.69 NDA); absent an express waiver by Germany, s.273 cannot be used to vest primary jurisdiction in a Canadian civil court.

Citation
2005 NSPC 13
Parties
Prosecution: Her Majesty the Queen; Defendant: D. E. S.
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
23 March 2005
Procedural Posture
Criminal / Jurisdictional Motion (pre Trial)
Outcome
Provincial Court lacks jurisdiction; matter may not proceed in Provincial Court absent waiver by Germany
Legal Topics
Extra Territorial Jurisdiction, Status of Forces Agreement (sofa), National Defence Act S.273, Service Tribunal Limitation (s.69 Nda), Charter S.15 Challenge
Source Language
English
Criminal Law International Law Military Law Constitutional Law Extra Territorial Jurisdiction Status of Forces Agreement (sofa) National Defence Act S.273 Service Tribunal Limitation (s.69 Nda) +1 more

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Parties

Her Majesty the Queen

Prosecution

D. E. S.

Defendant

Procedural Posture

Criminal / Jurisdictional Motion (pre Trial)

Legal Issues

  1. 1 Does the Provincial Court of Nova Scotia have jurisdiction to try offences allegedly committed in Germany by a Canadian Forces member?
  2. 2 Does s.273 of the National Defence Act operate to displace SOFA or permit civil courts to exercise primary jurisdiction absent a waiver by the receiving state?
  3. 3 Does the three-year limitation on service tribunals (s.69 NDA) mean military primary jurisdiction was forfeited and, if so, can civil courts thereafter exercise jurisdiction without Germany's waiver?

Ratio Decidendi

The Provincial Court lacks jurisdiction because s.273 NDA must be applied consistently with Canada’s SOFA obligations; Germany held primary jurisdiction for these offences and that primary jurisdiction was not waived to Canada and became effectively vested in Germany after the expiration of the service‑tribunal limitation (s.69 NDA); absent an express waiver by Germany, s.273 cannot be used to vest primary jurisdiction in a Canadian civil court.

Court Disposition

Provincial Court lacks jurisdiction; matter may not proceed in Provincial Court absent waiver by Germany

Orders

  • Provincial Court of Nova Scotia has no jurisdiction over the Information; proceedings in this court are not to proceed on these charges
  • Charter s.15 issue not considered due to lack of jurisdiction