HALIFAX - A military judge has dismissed a manslaughter charge against a former soldier charged in the fatal shooting of a fellow reservist in Afghanistan.
In his ruling on Wednesday, Lt.-Col. Louis-Vincent d'Auteuil says the court does not have the jurisdiction to proceed with the charge against Matthew Wilcox of Glace Bay, N.S.
Wilcox is facing a second court martial in the shooting death of Cpl. Kevin Megeney, 25, of Stellarton, N.S., in the tent the two men shared at Kandahar Airfield in 2007.
He has pleaded not guilty to charges of criminal negligence causing death and negligent performance of a military duty.
Wilcox, who was a corporal, was found guilty in July 2009 of criminal negligence and negligent performance of duty at his first trial. The manslaughter charge against him was stayed by a military jury.
However, the Court Martial Appeal Court of Canada set aside the guilty verdict last year after Wilcox's lawyers argued the makeup of a military jury was unfair. The appeal court ordered a new trial in the death of Megeney, who died on March 6, 2007.
Defence lawyer David Bright argued that the manslaughter charge was put before the original trial as an alternative to the charge of criminal negligence causing death.
At the time, prosecutors said the two charges were considered different versions of manslaughter and carried the same penalty. The military jury was told it had to choose one or the other in its deliberations.
But Bright told d'Auteuil that the appeal court had only directed a retrial on criminal negligence causing death and negligent performance of a military duty, and there were no legal grounds that allow the judge to bring back the manslaughter charge.
Military prosecutor Cmdr. Rob Fetterly said he should still have the choice of prosecuting both manslaughter and criminal negligence, arguing that was the implied intent of the appeal court when it ordered a new trial.
The judge agreed with Bright, saying the appeal court didn't explicitly direct the court to hear the manslaughter charge.
During the original trial, the prosecution put forward the theory that Wilcox and Megeney were playing a game of "quick draw" in their tent at the Kandahar Airfield base when Wilcox's loaded pistol accidentally fired, hitting Megeney in the chest.
Wilcox said it was a case of self-defence, testifying that he shot "instinctively" against an unknown threat that was pointing a gun at his back inside the tent he shared with Megeney.
Wilcox was sentenced to four years in prison and kicked out of the military at his first court martial.
