Canadian military prosecutors and police have dropped several cases and are changing the way they lay charges as they wait for the Supreme Court to decide whether the military-justice system is constitutional.

Seven criminal cases in the system have been abandoned and more than 30 others are either in limbo or have seen reduced charges, according to officials. More than half the cases involved sexual-assault allegations.

Military police have also started turning to a lesser charge for what one official called “lower-end” sexual assaults to keep cases in the court-martial system and referring more serious cases to civilian authorities.

The moves follow a lower court’s bombshell ruling in a sexual-assault case last September that found military tribunals are not equivalent to a trial by jury for serious civilian offences such as murder and sexual assault.

The Charter of Rights and Freedoms says anyone accused of a crime carrying 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.

But the Court Martial Appeals Court found in September that “civil offences are not offences under military law” – meaning military personnel charged with serious Criminal Code offences should be allowed to stand trial by jury.

Military prosecutors appealed that decision to the Supreme Court, which heard arguments from both sides in March, but has yet to issue its own decision on the matter. In the meantime, the lower court’s ruling remains in effect.

A total of 40 cases that were in the military-justice system before the appeals court ruling have been affected since the appeals-court decision, said Maj. Doug Keirstead, spokesman for the director of military prosecutions.

Eighteen of the cases, nearly all of which involved allegations of sexual assault, have since been referred to the civilian-justice system. While 14 of the cases remain under consideration, the civilian authorities decided not to proceed with four.

Four more sexual-assault cases are still in the military-justice system, but have been put on hold until the Supreme Court’s ruling. Military prosecutors decided on their own to abandon three cases. Those involved drug and fraud charges.

Military prosecutors opted in the remaining 15 to reduce or drop certain charges and proceed with courts martial, including two where sexual-assault charges were withdrawn and the service members are being tried for disgraceful conduct.

“Such decisions are based on a thorough analysis of the facts of the case and are a matter of prosecutorial discretion,” Keirstead said, adding: “Military prosecutors are required to consult victims before moving forward with such decisions.”

He said that while military prosecutors await the Supreme Court decision, they are “continuing to evaluate all affected cases on a case-by-case basis, while pursuing all available options to ensure that those accused of offences are prosecuted to the fullest extent of the law.”

Military police, meanwhile, have started using a lesser charge for “low-end” sexual assaults that involves a maximum sentence of up to 18 months, said spokesman Maj. Jean-Marc Mercier.

Charging someone with a summary-conviction offence rather than a more serious indictable offence lets them keep a case in the military system, where they can add military-specific charges such as abuse of a subordinate, misconduct and others that don’t exist in the civilian system.

That doesn’t mean serious charges aren’t laid, including for sexual assault, Mercier added, though these must now be referred to civilian prosecutors who will decide whether to proceed with a case or not.

The military’s current struggle with sexual-misconduct in the ranks started five years ago with concerns such incidents weren’t being properly handled, but Mercier insisted the changes have not affected how cases are investigated.

“The purpose of the military police will be to render justice as best as it can be and using the tools that are in place to do that,” he said. “The military police will adapt … to lay their charge.”

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