Prosecution (or not) of public dissent and criticism in the Canadian Forces
December 17, 2023Judgments from the Court Martial Appeal Court of Canada – R v Bruyère
January 7, 2024
2023 & 2024 – The Year that Was & the Year that Will Be
2 January 2024
Happy New Year.
As we start 2024, we again have an opportunity to reflect on developments in the administration of the affairs of the Canadian Forces (CF) and military justice over the past year, and we can examine emerging issues for the coming year. As has become my practice, I will offer a brief summary of the year that was and describe some of the emerging issues for the year that will be. And, as usual, I recommend that you take the use of the term ‘brief’ with a grain of salt. Your humble scribe is all too aware of his penchant for what we could describe as robust discussion. Frankly, there is much to discuss and much that could have been discussed, but for the limits of time and space.
2023 gave rise to a fair bit of litigation relating to military justice, including several prosecutions that were stayed or abandoned. We will discuss some of the more noteworthy developments, before both courts martial and civil courts of criminal jurisdiction, that involved matters of military justice, including noteworthy appellate judgments. And your humble scribe must acknowledge that he did not offer timely discussion of a few appellate judgments that merited examination earlier in the year.
We will also examine some of the decision-making that affected military law and the administration of the affairs of the CF. Such decisions were inextricably linked to developments before the court.
The discussion of the “year that was” foreshadows some of the developments that we might anticipate for 2024 and will inform further discussions of what we might expect in the administration of the affairs of the CF.
And, while your humble scribe readily acknowledges his tendency to view developments through a cynical lens, the disheartening reality is that such pessimism is not without merit. I will, nevertheless, endeavour to identify potential opportunities for improvement in the administration of the affairs of the CF.
The Year that Was …
Appellate Judgments
There were two notable appeals involving military justice brought before the Supreme Court of Canda (SCC) from the Court Martial Appeal Court of Canada (CMAC): R v McGregor, 2020 CMAC 8 and R v Edwards, et al, 2021 CMAC 2. The former was heard before the SCC on 19 May 2022 and the judgement, R v McGregor, 2023 SCC 4 [McGregor], was rendered on 17 February 2023. The latter was heard before the SCC on 16 October 2023, and we are still awaiting a judgment (which likely won’t be forthcoming until after March 2024).
I offered brief commentary on McGregor in the Global Military Justice Reform blog, edited by my American colleague, Gene Fidell:
Rory Fowler, “Extra-territorial application of the Canadian Charter of Rights and Freedoms”, (20 February 2023) online: Global Military Justice Reform[1]
McGregor concerned the extra-territorial application of the Canadian Charter of Rights and Freedoms (Charter) and offered an opportunity for the SCC to revisit the principles described in R v Hape, 2007 SCC 26 [Hape].
The outcome of McGregor was not particularly surprising. The SCC upheld the CMAC judgement, which, earlier, had dismissed Corporal McGregor’s appeal regarding search and seizure powers exercised by U.S. law enforcement officials in Corporal McGregor’s residence in the state of Virginia. Corporal McGregor was posted to a CF position located in Washington, DC, and resided in a house in Alexandria, Virginia.
This appeal potentially offered the SCC an opportunity to re-examine principles that had been established 15 years earlier in Hape. The majority of the court did not re-consider the merits of Hape, choosing instead to apply the principles derived from Hape to the facts arising in McGregor.
Although all participating justices agreed that the appeal should be dismissed, Justices Karakatsanis and Martin did so while offering a criticism of principles drawn from Hape. The majority judgment, written by Justice Côté, observed that McGregor was not an appropriate case in which to reconsider the extraterritorial application of the Charter set out in Hape. In this matter, the contention between the appellant and respondent arose from the application of Hape to the facts at hand. The majority held that the Court should not overrule a precedent without having been asked to do so by a party (contrasted with being asked to do so by an intervener). Second, the majority concluded that reconsidering Hape would have made no difference to the outcome of the appeal. Finally, the majority asserted that academic criticism is not a sufficient reason not to apply the principles of stare decisis. Therefore, they concluded that it would be preferable to leave reconsideration of the Hape framework for another day.
The appeal also permitted the SCC – or, more accurately, one of the SCC justices – to offer direction to potential intervenors. The appeal in McGregor was the subject of multiple applications for intervenor status, of which five were granted. Only one of the intervenors was a provincial Attorney General. It was select interveners, and not the parties to the appeal, who invited the Court to reconsider the principles from Hape. Consequently, Justice Rowe’s concurring judgment may be viewed as a rebuttal to that of Justices Karakatsanis and Martin. Justice Rowe offered some pointed guidance to future potential interveners. While Justice Rowe’s observations do not represent direction from the court, and can rightly be considered obiter dictum, it would be fair to suggest that future intervenors would do well to consider his observations.
The hearing of the appeal in Edwards et. al. concerned the independence of military judges, particularly their institutional independence. This has been the subject of previous discussion in this Blog, including my year-end review a year ago. I will refrain from delving into the various issues arising in that case and will limit myself to providing links to my previous commentary and offering a couple of supplementary observations.
The Year that Was & the Year that Will Be, 2 January 2023
Military Justice and Judicial Independence at the Supreme Court of Canada, 13 October 2023
Canadian Military Justice – 2021 Retrospective, 31 December 2021
During the hearing of the appeal before the SCC, counsel for Defence Counsel Services called upon the Court to re-consider and even overturn principles from R v Généreux, [1992] 1 SCR 259. Many of the justices seemed pointedly, and understandably, reluctant to do so. However, in order to ensure judicial independence within the military justice system, the Court need not go that far.
Généreux failed to address the specific issue of whether military judges are – or should be – part of the executive or the judicial branch of government. The SCC need not overturn Généreux in order to ensure judicial independence. What the Court must do is take then next logical step from Généreux (and R v Stillman, 2019 SCC 40) and clearly define the role and standing of military judges. And that ‘next step’ should logically require the Court to define military judges as falling principally within the judicial branch, notwithstanding their status as commissioned officers.
Several of the justices observed that it is not their role to set policy. However, they need not delve into policymaking in order to complete the process of defining military justice conducted in Généreux. A declaration that military judges are not subject to the jurisdiction of the Code of Service Discipline under s 60 of the National Defence Act (NDA) would secure their independence and would not amount to the sort of prohibited policy-making at which the justices balked. Nor would it result in a double-standard – or, at least, not a double-standard that does not already exist.
Military judges, like their civilian counterparts, would still be subject to prosecution for criminal (and other) offences before civil courts of criminal jurisdiction. They just would not be liable to prosecution before courts martial. Frankly, that is largely impractical in any event, since there are typically only four Regular Force military judges, and it would be difficult to identify a military judge who could preside over the trial of a colleague who, quite literally, works out of the same physical office. Consider: ‘Bad Facts’ and Awkward Law: The Director of Military Prosecutions v Deputy Chief Military Judge, et al., 2020 FC 330, 4 March 2020; Director of Military Prosecutions Withdraws Charges Against the Chief Military Judge of the Canadian Forces, 11 March 2020.
Moreover, there is a degree of irony that the officer who was calling upon the SCC to maintain the jurisdiction of the Code of Service Discipline over military judges – the Director of Military Prosecutions (DMP) – cannot, himself, be prosecuted before a court martial. DMP is responsible for the preferring of all charges to be tried by court martial and for the conduct of all prosecutions at courts martial.
Court Martial Appeal Court of Canada (CMAC)
In addition to the two above-mentioned appeals to the SCC, the CMAC heard, or handed down judgments in, several appeals throughout 2023. Some were relatively straight-forward matters; however, I would be remiss if I did not identify the following judgments that merit further discussion.
R v Remington, 2023 CMAC 5 and R v Turner, 2023 CMAC 7
Each of these judgments merited commentary at the time that they were handed down. Regrettably, your humble scribe was unable to provide that timely commentary. In the interests of space, I will not delve into those judgments here. However, I will offer commentary on each in the coming days, as each case merits individual commentary.
Also, an earlier appeal in R v Stewart, 2022 CMAC 9 merits some mention. Although that judgment was delivered 16 November 2022, it had an impact on administration of military justice in 2023.
Leading Seaman Stewart was charged with two counts of sexual assault contrary to s 271 of the Criminal Code and tried before a court martial pursuant to s 130 of the NDA. He was tried, in 2021, before a court martial consisting of a military judge sitting alone: i.e., the military judge was both the trier of law and the trier of fact. The central issue at court martial was consent. The Military Judge had to assess the credibility of the witnesses.
At trial, the defence brought an application under s 278.93(4) of the Criminal Code for a determination of whether evidence of prior sexual conduct of the complainant would be admissible under s 276(2) of the Criminal Code. The Military Judge concluded that the proposed evidence was not capable of being admissible and refused to hold a ‘Stage Two hearing’ under s 278.94.
As an aside, the process at court martial, including evidentiary determinations, is established under the National Defence Act. The process for the conduct of a court martial is a combination of provisions from the NDA and from Volume II (specifically, Chapters 103 through 119) of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), enacted by the Governor in Council under authority granted by Parliament through the NDA. The receipt of evidence before a court martial is governed by Appendix 1.3 of Volume IV of the QR&O, the Military Rules of Evidence, which are also enacted by the Governor in Council under the authority of the NDA. This procedure is further amplified by the Court Martial Procedures Guide and the Court Martial Rules of Practice, both issued under the authority of the Chief Military Judge.
Only offences under the Criminal Code (and other Acts of Parliament) are incorporated into the Code of Service Discipline by virtue of s 130 of the NDA. That provision does not incorporate procedural aspects of criminal prosecutions established under the Criminal Code.
The prosecution of sexual assault and related or similar offences has given rise to particularized processes for determining admissibility of various types of evidence. Many of these processes are intended to ensure that prosecutions do not permit the “twin myths”[2] regarding sexual activity to be introduced into a defence to such charges. (We will delve into this issue in the coming days when we discuss R v Crouch, 2023 CMAC 11.) These procedures and rules are enacted under the Criminal Code and are linked to the prosecution of sexual offences, but do not constitute offences themselves.
However, the Code of Service Discipline has not been amended to incorporate those processes. This can be contrasted with the fact that there was much gnashing of teeth regarding the importance of incorporating the so-called “Victims Bill of Rights” into the Code of Service Discipline. That was one of the two principal objectives behind the enactment of Bill C-77 in 2019, many provisions of which only came into force in June 2022.
Even though the Code of Service Discipline does not expressly incorporate the procedures established in sections 276 through 278.8 of the Criminal Code, those provisions are nevertheless applied in courts martial. Article 101.04 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) states:
When in any proceedings under the Code of Service Discipline a situation arises that is not provided for in QR&O or in orders or instructions issued to the Canadian Forces by the Chief of the Defence Staff, the course that seems best calculated to do justice shall be followed.
And s 4 of the Military Rules of Evidence states:
Where, in any trial, a question respecting the law of evidence arises that is not provided for in these Rules, that question shall be determined by the law of evidence, in so far as it is not inconsistent with these Rules, that would apply in respect of the same question before a civil court sitting in Ottawa.
In R v Stewart, 2022 CMAC 9, the Appellant brought two grounds of appeal. One of the grounds concerned the impact of evidence that had been collected, but subsequently lost. A second ground of appeal was based upon the contention that the Military Judge erred in refusing to hold a Stage Two hearing in relation to evidence of past sexual activity. The CMAC upheld the appeal on this second ground, quashing the conviction, and remitting the charges back to court martial. Consequently, the Court did not opine on the other ground of appeal.
Leading Seaman Stewart was tried a second time, before a different military judge, this time by General Court Martial (i.e., before a military judge and a Panel, where the Panel acts as tier of fact). Leading Seaman Stewart was acquitted.
A word or two on rank designations …
Before we leave the topic of appellate judgments, I wish to raise a minor concern that I, nevertheless, consider to be important.
Over the course of the past year (and not just the past year), I have noted that both military judges and the CMAC have consistently used rank designations that do not actually exist at law. And I find this troubling, as I would expect judges to respect the will of Parliament.
That may seem like a rather unnecessarily inflammatory statement to make. After all, what we are talking about is the use of the rank designations for junior non-commissioned members (NCM) who wear a naval uniform: Master Seaman, Leading Seaman, Able Seaman, and Ordinary Seaman. And this issue is limited to the English version of the rank designations. It’s not as if the use of incorrect rank designations will markedly undermine the administration of military justice.
But what it does do is set a bad example, and, secondarily, fails to offer adequate impetus for the Governor in Council to implement the necessary and desired legislative change.
I will explain.
This topic is not new to this blog. I have discussed it before:
Has the Canadian Forces Completely Abandoned the Rule of Law?, 28 August 2020
In fact, this issue has been circulating for over three years. On 27 August 2020, the Canadian Forces – specifically, the Commander of the Royal Canadian Navy (one of seven Commands established within the Canadian Forces, but not a separate “service”) – announced the intention to change the above-noted rank designations to newer, gender-neutral rank designations.
And, as I have commented previously, this initiative has merit. It will abandon antiquated rank designations in favour of more appropriate nomenclature. It will also linguistically align the rank designations in English with the same rank designations in French.
Unfortunately, despite the passage of over three years, CF and governmental decision-makers appear to have been unable to enact the simple regulatory change to implement this change. It is unclear whether this is due to incompetence or laziness; however, one thing is clear, as of the writing of the present Blog post, art 3.01 of the QR&O remains unchanged.
The CF did manage to issue CANFORGEN 112/20 on 11 September 2020 announcing the new rank designations: Master Seaman would be changed to Master Sailor; Leading Seaman would be changed to Sailor, First Class;, Able Seaman would be changed to Sailor, Second Class; and, Ordinary Seaman would be changed to Sailor, Third Class.
[I note, tangentially, that the proper rank designations are used on a Government of Canada webpage entitled “Royal Canadian Navy ranks and badges” and the same webpage indicates the intended change once art 3.01 of the QR&O is amended. However, it also uses the term “KR&O” – presumably meaning “King’s Regulations and Orders”. Unfortunately, this, too, is an error, as the QR&O have not yet been renamed KR&O. Although His Majesty, King Charles III did succeed the late Queen Elizabeth II over a year ago, the QR&O will only become the KR&O when art 1.01 of the QR&O is amended. So, the CF and the Governor in Council might want to get on with regulatory amendment … chop, chop.]
There’s a flaw with the approach taken thus far – s 21 of the NDA does not empower the CDS to alter rank designations with a CANFORGEN. However, it does empower the Governor in Council – at subsection 21(1) – to prescribe rank designations in regulations.
And it is not that difficult to staff a regulatory change of this nature. Granted, there are some administrative hoops that the CF would need to jump through, and granted, the Prime Minister has changed his Minister of National Defence (MND) a couple of times since the announcement was first made. But really, it shouldn’t be that difficult. And a CANFORGEN simply won’t cut it.
Is it such a big deal that military judges and appellate judges are using rank designations that are not authorized at law? After all, the leadership intent is clear enough. Isn’t that sufficient?
Well, you tell me – how important is it that we respect the will of Parliament? Parliament has expressly established at s 21 of the NDA that the ranks of officers and non-commissioned members of the CF shall be as set out in the relevant schedule, and that the ranks that will be used, or by which personnel will be referred, shall be prescribed in regulations made by the Governor in Council. And the specific regulation may be found at art 3.01 of the QR&O. And that regulation does not establish rank designations of Master Sailor, or Sailor First, Second, or Third Class.
So … do the courts take the position that we adhere to all laws, on only those to which we wish to adhere?
Objectively, whether the rank designations used by the courts are those set out under s 21 of the NDA and art 3.01 of the QR&O is a minor matter, when compared to more significant issues like judicial independence or timely adjudication of criminal and disciplinary allegations. Charter rights are not directly engaged. But what is engaged is the leadership role that the courts and judges play. Leadership is not the sole preserve of the senior-most officers in the CF.
Consider the fact that, after more than 3 years, the CF leadership, and successive Ministers of National Defence, have not made good on the promise to amend art 3.01 of the QR&O. Instead, CF leadership proceeds as if the relevant provision has been amended, even though they have failed to take all necessary steps to amend the provision. And courts martial and the CMAC also act as if the regulation has been amended.
How would we react if the CF leadership purported to alter other regulations in the QR&O through CANFORGEN? What if they purported to amend or add service infractions under Chapter 120 of the QR&O? What if they purported to alter, not simply amplify, the regulatory regime applicable to grievances under Chapter 7 of the QR&O?
True – there would likely be more immediate challenges to such ‘amendments’. But does that difference in likelihood or immediacy of challenge alter the nature of the law established by Parliament?
Moreover, by implicitly accepting “amendment by CANFORGEN” the courts could be said to encourage CF actors and decision-makers to play fast-and-loose with the rules. And, frankly, we have already encountered too many instances of a cavalier approach by CF decision-makers and their legal advisors, regarding the rule of law in the administration of the affairs of the CF. Those aren’t attitudes that should be encouraged.
And this is not the only action for which there has been unreasonable delay. Over 45 months have elapsed since the last Chief Military Judge retired, and the Governor in Council still has not designated a new Chief Military Judge. Lieutenant-Colonel L-V d’Auteuil has been the Deputy Chief Military Judge (and, therefore, the Acting Chief Military Judge) for nearly four years. I contend that this inaction demonstrates a marked disregard for the importance of military justice.
I suggest that, by acquiescing to the fiction that CANFORGEN 112/20 amended rank designations under art 3.01 of the QR&O, military and appellate judges are removing a potential motivator for CF actors to complete the actual regulatory amendment. Referring to the proper English language rank designations would serve as a material reminder that the CF and Governor in Counsel have still not delivered on their promised amendment. Consequently, military and appellate judges are withdrawing from that leadership role.
Other Developments in Military Justice
Despite the problematic direction of the previous Minister of National Defence (MND), Anita Anand, on 4 November 2021 and the consequent Orwellian Joint Statement by the Canadian Forces Provost Marshal (CFPM) and the Director of Military Prosecutions (DMP) on 5 November 2021, the military police continue to investigate allegations of criminal offences of a sexual nature and some of those allegations are prosecuted before courts martial.
Minister of National Defence Announcement – Sexual Misconduct, 5 November 2021
Stand By for Apologies – But, let’s talk about transparency…, 16 November 2021
The MND’s New Policy and the Rule of Law, 19 November 2021
Adequate explanations for why select matters are prosecuted under the Code of Service Discipline, while most are not, are not generally forthcoming.
However, it appears that most allegations of criminal misconduct of a sexual nature arising within the CF are being prosecuted before civil courts of criminal jurisdiction. Many are still being investigated by military police, but the charges are laid by way of information before civil courts of criminal jurisdiction. Again, no meaningful explanations are being offered why the military police continue to investigate matters that the previous MND dictated would be investigated by civil law enforcement. We can speculate that, in some matters, civil law enforcement politely informed the CF that it’s a CF responsibility to investigate allegations arising within the CF. I also suspect that many complainants still turn to the military police.
One of the key differences between prosecution before civil courts of criminal jurisdiction and courts martial is that, in the former circumstance, a CF member charged with one or more offences will have to pay for his or her defence counsel “out of pocket”. They cannot be represented free of charge by Defence Counsel Services, and almost all CF personnel receive income in excess of the threshold for eligibility for legal aid in Canadian provinces.
And, frankly, I suspect that this added barrier regarding access to justice was one of the unstated objectives of the MND’s problematic direction. In these circumstances, an accused will have to pay – typically at least tens of thousands of dollars – to defend against such allegations, rather than receive the benefit of robust defence from the counsel at Defence Counsel Services. And those accused are likely facing the spectre of compulsory release, even if they are eventually acquitted.
And the transfer of jurisdiction has led to some other problematic factors.
There have been some notable non-prosecutions of high-profile matters. The prosecution of allegations against Lieutenant-General (LGen) Trevor Cadieu (retired) and a second accused were stayed due to unreasonable delay that infringed the rights of the two accused under s 11(b) of the Charter.
Delay and the Prosecution of LGen Cadieu (ret’d), 15 October 2023
And, while there has been limited public information regarding the origins of that delay, the judgment by Justice O’Brien of the Ontario Court of Justice generally points to delay by military police in providing to the Frontenac Crown Attorney copies of various interviews with the complainant (for onward disclosure to defence counsel).
A cynical – if realistic – observer might conclude that the military police were reluctant to disclose subsequent interviews because the contents of those interviews contradicted prior statements made by the complainant in earlier interviews. However, we will likely never know why the military police bungled the provision of disclosure. Nor will there be any closure that normally arises from such a prosecution.
This stay of prosecution arose shortly after an earlier stay of prosecution in R v Harrison, 2023 ONCJ 392.
Political Interference was the cause of delay, not the military justice system, 17 September 2023
R v Harrison, 2023 ONCJ 392: Don’t Be Sold a Bill of Goods (Redux), 24 September 2023
The allegations against Harrison were not as high profile as those against LGen Cadieu (ret’d); after all, he wasn’t a General Officer (even though Trevor Cadieu was an Officer Cadet at the time of the alleged misconduct in his matter). However, the stay of prosecution in Harrison did garner some fleeting national news coverage.
In that case, the cause of the delay wasn’t principally due to problematic actions of the military police. Don’t get me wrong – the military police still demonstrated their fair share of ineptitude. As Justice Richardson stated rather clearly in his judgment: “How and why it took the military police eleven months to investigate this matter and commence the prosecution in the military system, would seem to be beyond belief.” [Emphasis in original]. However, that delay was “pre-charge delay”, and as most criminal defence counsel are well aware, pre-charge delay is not typically calculated under s 11(b) of the Charter.
Instead, the prosecution of Harrison was delayed because of an inexplicable decision by the military prosecutor to transfer the prosecution to a civil court of criminal jurisdiction after incurring 9 months of post-charge delay under the Code of Service Discipline.
Granted, prosecutorial discretion is such that DMP and his prosecutors are not obliged to explain their decisions. But, in the absence of explanation, observers will speculate. And there are few reasonable explanations that would explain why such a decision might be made. Moreover, we are also left to speculate whether any steps were taken to ensure that such problematic decisions would not be repeated.
And, speaking of problematic exercises of prosecutorial discretion, two other matters under the Code of Service Discipline merit comment.
The first was the utter dog’s breakfast – truly, there is no other way to describe the matter – that was the prosecution of LGen Steve Whelan.
Why is Lieutenant-General Whelan being court martialed?, 1 October 2023
It is still not clear why DMP chose to prefer and prosecute the charges that were placed before the court martial. It’s not entirely clear why they withdrew one of the charges at the outset of the court martial proceeding. The first charge, which was withdrawn, was the charge that purportedly described sexual misconduct. The remaining charge did not describe sexual misconduct. Nevertheless, even after the first charge was withdrawn, both the military prosecutor and select national news reporters tended to refer to the remaining charge as if it described sexual misconduct.
Eventually the second charge was also withdrawn – again with DMP’s habitual vague and ambiguous justification, stating that the charge was withdrawn based upon “… an assessment of the evidence …”. Presumably this translates into a conclusion that there was no reasonable prospect of conviction.
All that could be ascertained, if vaguely, from the evidence presented before the court martial, and which was not subject to publication ban, was that LGen Whelan – then a Colonel – engaged in some form of personal communication with the complainant. As the military judge, Commander Martin Pelletier, commented at the time, “… the emails are highly embarrassing personally and professionally …” to LGen Whelan. The extent to which any of his actions may have constituted misconduct remains uncertain, in part because the court martial did not hear from LGen Whelan or any other potential witnesses, and because the court did not make any determinations, save for admissibility of select, undisclosed, evidence. And most of what transpired between the complainant and (then) Colonel Whelan is subject to publication ban.
I contend that many Canadians who were following the court martial were left wondering just what the heck DMP, and the specific military prosecutor responsible for the carriage of the matter, were thinking when they pursued this prosecution. We certainly won’t get any further explanation from DMP. And I suspect that no small number of those observers might be inclined to conclude that this prosecution was pursued because of “inertia”. Various CF actors and decision-makers – and their political masters – and various news reporters made such a big deal out of the allegations that DMP – the purportedly independent military prosecutor – felt compelled to pursue a prosecution that was doomed to unravel in the manner that it did.
And that should be alarming to any Canadian who is concerned about the fair, reasonable, and ethical prosecution of offences (or infractions) within the military justice system. There are two considerations that should drive any prosecution: Is there a reasonable prospect of conviction? Is it in the public interest? And both those questions require answers in the affirmative before any prosecution should proceed.
No prosecution should proceed because it would be embarrassing to the Crown or governmental decision-makers if it did not, regardless of whether there was a reasonable prospect of conviction. And, frankly, that is precisely what the prosecution of LGen Whelan resembled once the dust settled.
A second noteworthy exercise of prosecutorial discretion unfolded toward the end of the year. On 15 December 2023, David Pugliese reported that DMP would not be pursuing a prosecution of Major Stephen Chledowski.
Prosecution (or not) of public dissent and criticism in the Canadian Forces, 17 December 2023
Major Chledowski, who had since been released from the CF, had posted a video in February 2022, in which he criticized the CF’s policies relating to COVID-19. Major Chledowski was not the only person to make such videos or to be charged. Contemporaneously, Warrant Officer James Topp (retired) had posted similar videos. Mr. Topp’s court martial had concluded a month before the news broke of the “non-prosecution” of Major Chledowski. And, while James Topp had certainly garnered his fair share of notoriety and news media coverage, objectively, Major Chledowski’s video was just as inflammatory as the videos James Topp had posted (if not slightly more so).
The justification offered by a National Defence spokesperson was consistent with previous vague and non-committal justifications offered by military prosecutors:
“Following an assessment by the Director of Military Prosecutions, it was determined that charges would not be preferred for court martial … In this case, the Canadian Military Prosecution Service determined that there was insufficient public interest to justify proceeding with charges.” And: “Appropriate steps were taken regarding this situation …”.
Reading between the lines, Major Chledowski had already been released from the CF, and the relevant decision-makers were content to leave the episode in the past. However, that didn’t explain why other, more junior, personnel were prosecuted. And based upon the reaction by many in the military and veteran communities, there was a great deal of public interest- and even outrage – in this decision. Again, it is unlikely that the Canadian public will even know the full story.
Military Justice before the Federal Court
2023 also witnessed a noteworthy judgment from the Federal Court regarding the Code of Service Discipline. The impact of the judgment is limited, since it concerned the right to elect trial by court martial, a right which disappeared when summary hearings (of service infractions) replaced summary trials, when the bulk of Bill C-77 came into force on 20 June 2022.
And, by way of full disclosure, I was counsel for the applicants.
In Noonan v Canada (Attorney General), 2023 FC 618 [Noonan], two distinct applicants challenged the refusal to offer them election for court martial when they were charged with offences under s 129 of the NDA. This is a topic that I have canvassed repeatedly in the past.
Noonan v AGC, 2023 FC 618 – An unsurprising result and its second-order implications, 5 May 2023
The direct impact of this judgment is limited. It concerned a legislated regime that is no longer active. It would only apply to CF personnel who were charged with offences under s 129 of the NDA prior to 20 June 2022. There was at least one other matter that the judgment in Noonan directly affected. However, presently, all service offences are prosecuted by court martial, and all service infractions are prosecuted by summary hearing. Election for court martial is no longer part of either process.
And I suggest that, had the applicants in Noonan been charged in relation to the same type of allegation, but where the alleged misconduct arose after 20 June 2022, they almost certainly would have been charged with a “service infraction” and prosecuted before a summary hearing, without any right to have the matter brought before an independent adjudicator.
So, the judgment in Noonan is not directly applicable to the Code of Service Discipline in its current incarnation. Its significance is what it conveys in terms of the confidence that we can have in the administration of military justice generally. And I must admit – it does not instill me with much confidence at all.
And the reason for my trepidation is that, in both matters that were brought before the Federal Court, the respective accused had conveyed the same arguments that were eventually raised before, and reviewed by, the Federal Court. In both matters, the accused appeared before an officer presiding at summary trial (i.e., a “presiding officer”). Each accused asserted his right to elect trial by court martial. Objectively, in one of the matters, the accused raised much more robust argument than the other. However, both asserted the right to elect trial by court martial.
In both cases, the presiding officer refused to do so and expressly asserted that he had legal advice that said he was not obliged to do so. Neither presiding officer disclosed that advice, and to be fair, neither was obliged to do so. However, they were obliged to provide transparent and intelligible reasons justifying their decisions. And the reasons offered by both presiding officers were conclusory. In particular, in the matter in which the accused presented robust written argument why he was entitled to an election for court martial, the response from the presiding officer – a Commodore – was particularly lacklustre.
Both accused sought review of the presiding officers’ decisions under art 108.45 of the QR&O (which was repealed on 20 June 2022). Again, while one of the applicants offered more robust argument, both contested the refusal to afford them an election for court martial. Again, they received lacklustre conclusory justifications for the refusal. Even though one of the applicants did not present particularly robust arguments in favour of the right to elect trial by court martial, that did not obviate the requirement for the review authority to provide transparent and intelligible justification for his decision. After all, the review authorities were statutory decision-makers who had access to free legal advice from the Office of the JAG (OJAG) and who had an obligation to provide reasonable, intelligible, and transparent justification for their decisions.
I can also state that, although one applicant’s arguments before the presiding officer and review authority were ‘less robust’, he benefitted from a much more robust written argument presented under art 116.02 of the QR&O, which was sent to the legal office that performed the duty of reviewing the proceeding. I should know – I wrote them.
My point is this: before any notice of application for judicial review was ever filed, the relevant decision-makers and their legal advisors were put on notice that the right to elect court martial had been withheld in both circumstances based upon an incorrect and unreasonable interpretation of the relevant provisions in art 108.17 of the QR&O. And those arguments fell on deaf ears.
I suggest that the outcome in Noonan was a foregone conclusion.
As I say, the central issue that was argued in Noonan – the correct and reasonable interpretation of art 108.17 of the QR&O – is moot. That provision was repealed on 20 June 2022. Summary trials have not been initiated for 18 months. Unless there are any pending applications for judicial review on that issue – and there are none of which I am aware – that legal issue will not arise again.
But there is a tangential issue regarding the confidence that we can have in the administration of military justice. In both matters that were the subject of review in Noonan, the accused expressly asserted a right that was clearly established under the NDA and the QR&O. They presented arguments – in one case, extremely robust written argument – regarding why they were entitled to the right that they claimed. It is clear that the decision-makers responsible for the military justice process sought legal advice from the OJAG. We know this because they expressly stated that they were relying on such legal advice.
And, in light of the relevant context, this advice came from different sources within the OJAG. It is reasonable to conclude that this was not advice based upon a specific personal perspective of a single legal officer; this was an institutional position taken by the statutory legal advisor to the CF on matters of military law and the superintendent of military justice – the JAG.
And this was not some obscure or tangential legal issue. The right to elect trial by court martial when charged under s 129 of the NDA is an issue that arose frequently over the 20+ years since the reform of the Code of Service Discipline under Bill C-25 in 1998. Charges laid under s 129 of the NDA were one of the most frequently laid charges – if not the most frequently laid charge – under the Code of Service Discipline. That section was also subject to extensive judicial scrutiny and judgment.
It is an inescapable fact that the right to elect trial for court martial when charged under s 129 of the NDA was frequently the subject of legal advice from the OJAG.
And that advice – in the matters giving rise to the application in Noonan and in similar matters over the last few years that summary trials existed – was not only wrong; it was unreasonable.
To the best of my knowledge, the OJAG has at least 170 Regular Force Legal Officers augmented by at least 50 Reserve Force Legal Officers. A significant proportion of those – at least a third, work in the ‘pillar’ of military justice. The Legal Officers in the Regional Service Division deal with these issues regularly. And despite the considerable experience and knowledge contained in the OJAG, it erred in the interpretation of art 108.17?
I have difficulty believing that the source of the error was a deficiency of knowledge and experience. I have worked with many of these officers (at least the more senior ones – it has been 7 years since I retired from the CF). I have first-hand experience observing their abilities.
What causes greater concern for me is the remaining explanation. If this unreasonable legal advice was not the product of shortcomings of knowledge or experience, then the sole remaining plausible explanation is that the OJAG provided problematic advice because they preferred to provide the advice that the decision-maker wanted, rather than the advice that the decision-maker needed.
In other words, it is plausible – even likely – that CF decision-makers and their legal advisors proceeded with an incorrect and unreasonable interpretation of art 108.17 of the QR&O (as it then existed) because they were cognizant of the barriers that CF members faced when challenging problematic statutory decision-making. The cost of legal assistance can have a chilling effect. Retaining counsel, privately, to assist with a summary trial, and any subsequent review – including judicial review – can be an expensive undertaking. If the punishment that a CF member receives from a summary trial (or now, a summary hearing) amounts to a fine (or deprivation of pay) of no more than a couple of thousand dollars, the CF member subject to such punishment is unlikely to seek legal assistance that could cost markedly more than that.
And if my conclusion is correct, that does not bode well for the administration of military justice under the revised Code of Service Discipline. In particular, I have grave concerns about the prosecution of service infractions before summary hearings.
Grievances
I’d like to report that the adjudication of grievances improved over the course of 2023. But who am I kidding? The CF grievance process remains slow and unsatisfactory. It warrants an in-depth examination of various flaws and problematic aspects. Consequently, over the course of January, once I have presented a brief review of relevant CMAC judgments from 2023, I will offer some observations regarding the adjudication of grievances.
There were a couple of interesting developments within the context of grievances that merit some brief commentary here.
First, the Military Grievances External Review Committee (MGERC) produced Findings and Recommendations (F&R) related to a series of grievances submitted by CF personnel who were the subject of adverse administrative action – up to, and including, compulsory release – for refusing vaccination against COVID-19. Those F&R were the product of MGERC Member Nina Frid.
MGERC Findings & Recommendations: Myths & Misconceptions, 9 August 2023
The F&R do not constitute the determination of those grievances. That lies with the Chief of the Defence Staff (CDS) or his delegate, as the final authority in the grievance process. And the final authority is not bound by the F&R from the MGERC. However, where the final authority chooses not to follow a finding or recommendation, he must provide reasons for that decision. (And, in any event, he must provide reasons for his decision, generally.)
The questions that remain are, generally: Will the CDS (final authority) accept Ms Frid’s F&R? When will those grievances be determined?
Regarding the first question, I suspect that the CDS (or his delegate) is motivated to find a way to reject at least part of the F&R. After all, the F&R were highly critical of both the policy and its implementation by Director Military Careers Administration (DMCA). Regarding the second question, based upon the track record in such matters, we may not see any determinations in 2024. And, in part, any delay will be attributable to the first question. If the CDS wishes to reject some or all of the F&R, he will have turned to the OJAG – specifically, the Administrative Law Division – to help bolster (or even draft) any determinations that he, or his delegate, makes. And that will take some time.
The MGERC was also a topical subject during 2023 for a distinct reason. Late in 2022, the Chair of the MGERC, Christine Guérette, stepped down prior to the end of her 5-year mandate. Consequently, the Privy Council Office initiated a search for both a new Chairperson, as well as a full-time Vice-Chair. In the interim, by Order in Council 2022-1572, dated 16 December 2022, the Governor in Council appointed the MGERC General Counsel, Vihar Joshi (a retired legal officer who had previously served as Deputy Judge Advocate General – Administrative Law) as interim Chairperson for a period of one year.
Observers may have expected the Governor in Council to have appointed a new Chairperson prior to the end of Colonel Joshi’s (retired) interim mandate, which was 15 December 2023. However, on 24 November 2023, the Governor in Council re-appointed Vihar Joshi, by Order in Council 2023-1144 “… as interim Chairperson of the Military Grievances External Review Committee, to hold office during good behaviour, for a term of six months, or until such time as a new Chairperson is appointed, whichever occurs first …”.[3]
It appears that the Governor in Council has experienced “timeliness challenges” in appointing a new Chairperson in a manner similar to the lack of timeliness in amending art 3.01 (or art 1.01) of the QR&O and the lack of timeliness in designating a new Chief Military Judge.
Military Police
Another important component of military justice is represented by the military police. As I allude above, 2023 wasn’t a stellar year for the military police. Those of us whose have occasion to observe military justice regularly are familiar with the frequency and length of pre-charge delay as military police take months before laying charges in circumstances in which civilian police might take days or weeks to lay similar charges. Nevertheless, in R v Harrison, we had a glimpse of the incredulity expressed by Justice Richardson regarding the time that it took military police to act.
Similarly, as I indicated regarding the delay in disclosure for the prosecution of LGen Cadieu (ret’d), Justice O’Brien appeared to lay the blame for the delay clearly at the feet of the military police.
After the court martial of LGen Whelan imploded, LGen Whelan’s civilian defence counsel alluded to the damage done by a leak of the military police investigation back on 15 October 2021. And that was not the only investigation of a General Officer/Flag Officer (GOFO) that was apparently, and inexplicably, prematurely leaked to news media and others. The investigation of Major-General (MGen) Dany Fortin also leaked in 2021, which precipitated significant adverse action against him. In fact, information appeared to be leaked regarding investigations against multiple GOFO.
And we still have no answers about those leaks.
MGen Fortin brought a complaint to the Military Police Complaints Commission (MPCC) on 17 January 2023. And, while his complaint was not limited to the unexplained leak of the military police investigation, that was one of the issues raised. On 20 April 2023, the MPCC Chairperson indicated that the MPCC would conduct a Public Interest Investigation (PII).
Interestingly, the surviving family of the late Major Cristian Hiestand also requested a PII regarding many of the same issues raised by MGen Fortin. That request was made in May 2022. It was initially rejected by the (then) Interim Chair of the MPCC. The Interim Chair then reconsidered that decision in November 2022 and indicated that a PII would proceed, but only after the military police completed their investigation. As of 31 December 2023, after more than 18 months, the military police have still not completed that process. There has been no subsequent advancement of the “Hiestand PII” by the MPCC.
In contrast, the “Fortin PII” has proceeded apace. In fact, following the announcement that MGen Fortin had reached an undisclosed settlement with the federal Crown regarding his treatment by several senior political and CF decision-makers, the now-retired MGen Fortin formally withdrew his MPCC-related complaint through a letter from his legal counsel. However, on 24 October 2023, the Chair of the MPCC indicated that the PII would still proceed.
Once thing is abundantly clear from these multiple examples, the military police have not covered themselves in glory regarding investigations of sexual misconduct. Their investigations take too long and there have been problematic actions by military police once charges were laid (and, sometimes, even when charges are not laid). And, as slow as the investigations of the Canadian Forces National Investigation Service (CFNIS) may be, their delay pales in comparison to the delay by the military police Professional Standards section when they receive complaints of misconduct by those investigators.
Consequently, the MND’s promotion of the CFPM, Simon Trudeau, to Major-General – announced via CANFORGEN 183/23, dated 7 December 2023 – tends to strike an incongruous chord when compared to the performance of the military police during his tenure. Consider, as well, that CFPM position was initially established at the rank of Colonel and, presently, there is only other officer above the rank of Lieutenant-Colonel in the CF Military Police Group – the Deputy Commander, Colonel V. Hanrahan.
The Year That Will Be …
I suspect that most readers will note a pessimistic tone in the present Blog post. I regret that much of what I have observed over the past year has not left me with particularly positive outlook on military justice and the administration of the affairs of the CF. While I do try to generate hope for improvement, “hope is not a method”.
I anticipate that we can anticipate further disappointments in 2024.
There remains one outstanding prosecution regarding the various GOFO who were accused of sexual misconduct (albeit the allegations in these matters dated from periods when the GOFO in question held much more junior ranks). Thus far, despite the “prosecution in the court of public opinion” pursued by select journalists, there have been no convictions of any of the GOFO accused of sexual misconduct.
General Jon Vance pled guilty before a civil court of criminal jurisdiction to the offence of ‘obstruct justice’ and received a conditional discharge. He faced no charges relating to sexual misconduct and, in any event, in light of the discharge, was not convicted.
MGen Dany Fortin was unequivocally acquitted.
The prosecution of LGen Trevor Cadieu was stayed for unreasonable delay.
The prosecution of LGen Steve Whelan imploded spectacularly.
Other GOFO faced various allegations, some of which did not even constitute offences. That certainly did not stop various people from besmirching their reputations. Some GOFO were accused of conduct that, if true, would constitute one or more offences, but were never charged. And, in light of the incredibly low threshold that has been applied in some of the matters that were brought to trial, that likely says all you need to know about the quality of the evidence collected in those investigations.
The sole remaining matter that received widespread news media coverage concerns the two charges against Vice-Admiral (VAdm) Haydn Edmundson dating to 1991. These charges were prosecuted before the Provincial Court of Ontario. He pled not guilty when his trial commenced on 8 August 2023. Less than a week later, on 14 August 2023, the trial was adjourned as the judge was unavailable. There has been pointed silence in the news media regarding when, if ever, the trial might resume.
VAdm Edmundson was charged December 2021. Over 2 years have expired since he was charged. That is well beyond the 18-month presumptive ceiling for reasonable delay under s 11(b) of the Charter for matters prosecuted before a provincial court. However, that presumptive ceiling applies to institutional or Crown delay – not delay attributable to the defence. We do not have reliable information about whether any of the delay thus far might be attributable to the defence. However, with each passing day, the likelihood of a stay of prosecution increases (assuming that threshold has not already been reached).
I anticipate that, sometime early in 2024, we will learn that the charges against VAdm Edmundson will be stayed or withdrawn. That will inevitably precipitate the same recriminations and gnashing of teeth that arose when prior prosecutions were stayed or otherwise halted.
And we likely won’t see the same rash of allegations against GOFO that we experienced over the course of the past 4 years. At the risk of upsetting some by stating the obvious, yet cynical, factor, I suggest that most of these allegations arose out of claims submitted in relation to the class action for sexual misconduct.
Before I proceed, and because I anticipate that my comments may draw angry responses from some quarters, I will preface the discussion with a couple of observations.
First, the class action settlement for sexual misconduct in the CF represents an effort by the government to make amends to victims of various forms of sexual misconduct and discrimination. I suggest that is one of the reasons why the federal Crown did not advance the full panoply of arguments that are typically raised in defence of litigation by current of former CF personnel. This represented a positive step in an attempt to turn the corner regarding harm that arose over an extended period of time.
Some people may be inclined to criticize the selective nature of the government’s decision – for example, there have been victims of other forms of discrimination, abuse, or inaction who have not benefitted from permissive governmental decision-making – however, the fact that the government is not supportive of claimants in other matters does not de-legitimize its efforts regarding these specific sources of harm.
Second, the fact that many of the claims arise from what may be characterized as “historical complaints” does not mean that the incidents are any less traumatic for the survivor. These claims are not any less legitimate in light of the passage of time.
Nevertheless, we would be naïve if we assumed that the class action settlement was not a relevant factor in complaints of sexual misconduct by current or former CF personnel that have been prosecuted over the past few years. I am not in a position to confirm whether the complainants in the investigations against various GOFO from 2020 to 2023 were also claimants in the above-mentioned class action. However, in light of the nature of the allegations, the date of the alleged misconduct, and the timing of the complaints, there is a high probability that most, if not all, of the allegations arose from claims under the class action.
I will explain.
Ideally, a claimant in the class action would be able to point to evidence to support and corroborate their claim. One of the best forms of corroboration would be a police investigation – civil or military – relating to the incident(s) upon which the claim is based. Ideally, it would be a contemporaneous investigation. However, as most people are aware, there are multiple reasons why a complainant may have been reluctant to report sexual misconduct at the time that it arose. If there was no police investigation, it is likely that the class-action claimant would be told that his or her eligibility for compensation would improve if there were a corresponding police investigation. Therefore, several claimants reported the allegations to the military police (or civilian law enforcement). In turn, the military police (or civilian law enforcement) commenced investigations.
There have certainly been prosecutions under the Code of Service Discipline over the past five years relating to “historic” cases of sexual assault (or other forms of sexual misconduct) that were reported as a result of applications under the class action. Not all such allegations would have given rise to a prosecution. In some circumstances, the evidence may have been insufficient for a reasonable prospect of conviction. Alternatively, the complainant may have been reluctant to testify at a trial, and the relevant prosecutor concluded that it would not be in the public interest to pressurize the complainant to testify.
But where the subject of the investigation was a GOFO (whether or not he was a GOFO at the time of the alleged misconduct), I suggest that there would have been a greater motivation on the part of military police and other actors to pursue the investigation and prosecution as far as feasible (and maybe even further). There would also be an incentive for some people to leak the contents of such investigations. And that certainly arose.
However – and I suspect that my comments here may be viewed as controversial – other than ruining a few careers and reputations, some of which I suggest were ruined without valid justification, these investigations and prosecutions have achieved little. Certainly, they have not produced any convictions (at least among the GOFO – there have been a few convictions of more junior personnel). In many cases, they have provided no closure to complainants.
And, frankly, they have done little to instil confidence in the military justice system. On the contrary, I suggest that if these prosecutions have achieved anything, it is the opposite – they have presented a tangible risk of bringing the administration of military justice into disrepute.
And lest anyone accuse me of not being sufficiently victim-centered and trauma-informed, you can check your indignation at the door. Nothing that I have mentioned suggests that victims of sexual misconduct should not be compensated for the harm that they suffered, particularly where an institution did not do enough to protect them, to encourage them to report misconduct, or to act upon their complaints.
When I suggest – with good reason – that many (if not all) of the high-profile complaints of sexual misconduct against various GOFO arose because of the above-mentioned class action, I am not criticizing the government’s admirable intent in compensating victims. However, we would be naïve if we ignored this factor regarding the timing of the complaints.
Similarly, a victim-centered and trauma-informed approach does not require us to jettison the necessity of testing evidence of alleged misconduct. Nor should it inhibit meaningful discussion about the weaponization of false complaints. And that is a topic that we will revisit in 2024.
It is important that we pursue an open-minded and critical examination of the danger that false complaints can have on the administration of military justice and the administration of the affairs of the CF. Such complaints not only harm the accused/respondent who has been falsely accused – they also undermine the valid complaints brought by others.
Moreover, I suggest that we must maintain a critically objective examination of how the CF handles allegations of sexual misconduct. We’d be deluding ourselves if we concluded that the CF has corrected this problem simply through the greater awareness of sexual misconduct that has arisen over the past few years. Canadian society has not eradicated sexual misconduct. And, as I explained nearly 7 years ago in response to claim by the (then) CDS, General Jon Vance, that the CF would “eradicate” sexual misconduct through Op HONOUR: rhetoric involving unrealistic goals (even if you acknowledge that the hyperbole is intended to serve as an aspirational goal) is pointedly unhelpful.
Summary Hearings
The CF has now had summary hearings to try service infractions for a year-and-a-half. There is little data available regarding these new service tribunals and how they have been conducted. The last JAG Annual Report was published in August 2023. However, it covered the fiscal period from 1 April 2021 to 31 March 2022. That period pre-dated the coming into force of the provisions of Bill C-77 that created service infractions and summary hearings.
In my New Year summary a year ago, I raised concerns regarding potential shortcomings relating to the prosecution of service infractions by summary hearings, introduced under Bill C-77. Those concerns remain, and we are approaching a point in time where we may start to see a critical mass of data by which we might evaluate this process. Of course, much will depend upon what data the OJAG is willing to share with the public and how it is presented.
From what I have encountered, the quality of summary hearings has varied markedly. Notwithstanding the elimination of the right to elect trial by court martial and the lowering of the burden of proof for service infractions, the process remains markedly similar to the previous summary trials. The process is now described largely in policy – the Military Justice at the Unit Level (MJUL) Manual – rather than regulation. We would also do well to remember that a finding of guilt for a service infraction does not preclude prosecution for a service offence relating to the very same incident.
There are likely some challenges arising from the fact that, unlike the very clear process described under the QR&O for the now-defunct summary trials, the relevant statutory provisions under the NDA regarding summary hearings are not repeated in the QR&O. This potentially gives rise to a disjunctive understanding of the relevant law, since “officers conducting summary hearings” (OCSH) would need to switch between the NDA and the QR&O to have a complete understanding of the relevant law. Even then, there are gaps filled by policy. I suspect that most OCSH rely heavily on the MJUL Manual, with little or no reference to the NDA or the QR&O (i.e., the legislation that actually empowers them to act in a highly coercive manner). They will also rely on their legal advisors (see above for my concerns)
One “improvement” arising from the introduction of summary hearings is the requirement for an OCSH to provide written reasons for their decisions regarding finding and sanction (art 122.09(4) of the QR&O). An optimist might view this as an improvement in safeguarding the fairness of the process. A pessimist (or a realist) would likely see it as a measure to help protect decisions against subsequent review. If the OCSH reduces her or his decision to writing, it provides a more defensible basis for the review authority to uphold the decisions. Moreover, in light of the marketing of summary hearings and service infractions as “professional regulation”, a requirement to reduce decisions to writing was inevitable.
The quality of these written reasons varies significantly. Some are well written (albeit erring a tad on the side of boiler-plate reasons). Some are atrociously conclusory.
However, the decisions of the OCSH are not subject to judicial review. A CF member must first exhaust the review process under Chapter 124 of the QR&O. Only once this process is complete, can the CF member bring an application for judicial review, much as was done in Noonan. I anticipate that we will likely see at least one such application brought in 2024.
We will also likely see an application relating to deprivation of liberty or security of the person, contrary to section 7 of the Charter, through sanctions imposed following summary hearing. Notwithstanding the elimination of the right to elect trial by court martial and the lowering of the burden of proof, an OCSH has the power to impose sanction such as “reduction in rank” and “confinement to ship or barracks”. Despite the characterization of the MJUL as non-penal, low-level disciplinary proceedings, these sanctions potentially infringe section 7 of the Charter. And a key question is whether this is done “… in accordance with the principles of fundamental justice …”. I have my doubts.
Onward, into the unknown …
There remain multiple issues that may arise in 2024. In the wake of the “Report of the Independent External Comprehensive Review” (colloquially referred to as the Arbour Report), multiple initiatives were purportedly pursued. One of those was the transfer of some (but not all) investigations, and many (but not all) prosecutions, of sexual offences to civil police and civil courts of criminal jurisdiction (respectively). That problematic policy has not been without difficulties, and there is a marked lack of transparent reporting by CF authorities regarding the matters investigated or prosecuted by civil law enforcement and civil courts.
The MND also created the Canadian Military Colleges Review Board in light of recommendations #28 and #29 in the Arbour Report. Those recommendations focused on review of military colleges. Recommendation #28 expressly called for the elimination of the Cadet Wing responsibility and authority command structure. Recommendation #29 leaned heavily into the suggestion that the Canadian government should reconsider using military colleges to deliver university-level and military leadership training to officer cadets. Unsurprisingly, this drew a sharp reaction from the alumni of military colleges.
Interestingly, while s 45 of the NDA (amplified by Chapter 21 of the QR&O) expressly provides for a statutory mechanism by which the MND may “… be informed on any matter connected with the government, discipline, administration or functions of the Canadian Forces or affecting any officer or non-commissioned member …” (i.e., a Board of Inquiry), the MND has, yet again, chosen to create an ad hoc “Review Board”. Granted, the “terms of reference” for this Review Board are largely similar to the type of “terms of reference” that would be created for a Board of Inquiry. However, that simply reinforces the over-riding question: Why didn’t the MND rely upon the process that was expressly created by Parliament?
The CF watchword (or, more accurately, watchwords) for 2023 was “culture change”. That will undoubtedly continue into 2024. Culture change is vital in any institution, particularly one like the CF that has struggled, repeatedly, with developing inclusive approaches to the performance of its principal objectives. However, platitudes and slogans are insufficient if fundamental objectives are ignored. And culture change is not the principal objective of the CF; it is a means by which the CF may improve in order to meet its principal goals and objectives. And, while objectives such as training and fielding armed forces that are capable of providing for national and collective defence and collective security must remain paramount, the manner in which the CF achieves those objectives must still comply with the rule of law.
Some critics of Canadian Defence policy have suggested that the current government has failed to maintain adequate focus on National Defence. There is merit to much of that criticism. While I have an interest in the operational capabilities of the CF, my focus – for obvious reasons – tends to be on military justice and legal dimensions of the administration of the affairs of the CF. And I suggest that the CF leadership, their legal advisors, and their political masters have repeatedly failed to ensure that the CF is governed in a manner consistent with the rule of law and relevant principles of public and administrative law.
And, as with the ‘operational deficiencies’ that have developed in the CF, the deficiencies regarding respect for the rule of law must also be corrected in 2024.
[1] In my commentary on the Global Military Justice Reform blog, I noted that Justice Russell Brown – who had been the most aggressive of all the judges in challenging the arguments of appellate counsel – did not participate in the judgment. At the time, the public was unaware of the complaint that had been raised against Justice Brown, arising from an incident that had occurred in the United States. That incident would eventually lead to an inquiry by the Canadian Judicial Council and Justice Brown’s resignation from the apex court prior to the completion of that inquiry.
[2] The twin myths are what Parliament describes as the falsely held belief that evidence of prior sexual activity, be it with the accused or another person, renders the complainant either less credible and/or more likely to have consented to the sexual activity in question. Nevertheless, there are circumstances in which prior sexual activity can be relevant to the evidence presented before the court. Consequently, Parliament has enacted specific statutory processes to facilitate the determination of the admissibility of evidence.
[3] Interestingly, while the salary range for the Chairperson of the MGERC is set at $176,500.00 to $207,600.00 per annum, Vihar Joshi’s salary as Interim Chair was set at a range of $215,900 to $253,000 per annum.
