Reference as to whether members of the Military or Naval Forces of the United States of America are exempt from Criminal Proceedings in Canadian Criminal Courts

Parties

Procedural Posture

Reference to Supreme Court of Canada (advisory) / Hearing on Referred Questions; Advisory Opinion Delivered

Legal Issues

1. 1 Whether members of United States military or naval forces present in Canada with consent are exempt from prosecution in Canadian criminal courts and to what extent
2. 2 Whether Parliament or the Governor General in Council under the War Measures Act has jurisdiction to enact legislation similar to the United Kingdom's Visiting Forces Act to grant such exemption

Ratio Decidendi

The Supreme Court held that the Dominion Parliament (notably under head 7 of s.91 BNA Act) and the Governor General in Council acting under the War Measures Act have jurisdiction to enact legislation similar to the United Kingdom's Visiting Forces Act to exempt visiting United States forces from Canadian criminal jurisdiction; absent such valid domestic legislative action, Canadian civil courts retain jurisdiction over offences by visiting land forces on Canadian soil, although limited immunities for internal discipline and shipboard matters are recognized.

Court Disposition

Question 2 answered in the affirmative (Parliament and Governor General in Council have jurisdiction to enact Visiting Forces type legislation). Question 1 received divided answers: plurality and several judges recognized limited immunities (notably shipboard/internal disciplinary exemptions) and some judges...

Orders

• Advisory opinion delivered answering referred questions: Q1—see reasons (limited shipboard/internal disciplinary immunity recognized; no general land‑force immunity at common law according to some reasons; other reasons find broader international immunities); Q2—Yes: Parliament and Governor General in Council have...