A bit of Code of Service Discipline Data …

 

… what it can tell us, and what it cannot.

 

My apologies Dear Reader, for my absence over the past month.  January was a busy month for me.  Much has been going on in both Canada, generally, and the Canadian Forces (CF), specifically, and there are several topics that can, and should, be addressed.  The administration of vaccine mandates within the CF, the long-overdue implementation (eventually, perhaps) of Bill C-77, the policy announcement late last year by the new Minister of National Defence (MND) regarding the prosecution of alleged ‘criminal offences of a sexual nature’, and examination of developments in the military disciplinary systems of our allies (particularly those with comparable legal systems) are all topics that merit discussion and examination.

While I had intended to make my first post of 2022 a list of potential ‘New Year’s Resolutions’ for senior Defence decision-makers, I rejected that idea.  Not only was I quite busy, but I also find that such lists can represent an over-worn cliché.

Instead, my first post of 2022 will be a brief examination of some data I was examining at the end of 2021 in preparation for my Blog post “Canadian Military Justice – 2021 Retrospective”.  It occurred to me that this presented an opportunity to discuss what such data can tell us, as well as the pitfalls of attributing excessive significance to such data.  There has been some scholarship over the past couple of years concerning data relating to the Code of Service Discipline generally, and Sexual Misconduct specifically, and I have found that a fair bit of the analysis of such data has been less-than-disciplined, a tad self-serving, and sometimes downright disingenuous.  Some of it is passed off as ‘statistical analysis’ when it is more accurate to describe it as discussion of fairly limited data points (and rather selective discussion at times).

By way of illustration, I present below some data regarding courts martial over the latter half of 2021 as well as some data regarding summary trials collated by the Office of the Judge Advocate General (OJAG) over the two decades since the implementation of Bill C-25[1].  I do not characterise this as statistical analysis, principally because it is manifestly not statistical analysis.  Instead, my comments represent a rather rudimentary examination of some limited data.

Notwithstanding the limits of this examination, I believe that there are some pertinent observations that I can offer, particularly when I combine the examination of this limited data with legal principles and doctrine that I have discussed previously in this blog.  The conclusions that I draw are indicative, not determinative; however, they will be pertinent to observations that I will offer in further Blog posts in the coming days.

 

Scope

My intent is to examine two different phenomena:

1. The number of prosecutions of alleged sexual assaults, conducted before courts martial in the latter half of 2021, and which concluded with a result other than a finding of guilt; and
2. The marked drop in the conduct of summary trials since 2015, during the period in which Op HONOUR was purportedly one of the main efforts of the CF.

 

I draw the following conclusions:

1. While the data regarding the prosecution of sexual assault is too limited, both in terms of numbers and the relevant time-frame, to suggest compelling conclusions regarding what the results may signal, we ought, nevertheless, to be concerned about what these results might indicate in light of the MND’s recent policy announcement that alleged ‘criminal offences of a sexual nature’ will be investigated by civil authorities and prosecuted before civil courts of criminal jurisdiction; and
2. CF decision-makers appear to be resiling from the use of the Code of Service Discipline to address allegations of misconduct in favour of relying on other mechanisms – principally administrative mechanisms – and this should be of material concern to anyone who wishes to ensure that the CF is governed in a transparent and fair manner and in accordance with principles relating to the rule of law.

 

Courts Martial – July to December 2021

In preparation for my Blog post “Canadian Military Justice – 2021 Retrospective”, I examined some of the publicly available data for courts martial for the past year.  One of the factors that stood out was the cumulative results of courts martial, conducted in the latter half of 2021, in which at least one charge of sexual assault was prosecuted.  I examined this time-frame in light of the timing of the judgment handed down in in R v Edwards; R v Crépeau; R v Fontaine; R v Iredale, 2021 CMAC 2.

Readers of this Blog will recall that a regular topic of discussion throughout 2020 was the nearly year-long stand-off (or, alternatively, dialogue) between the military judges and the (then) Chief of the Defence Staff (CDS), General Jon Vance, regarding the ‘Designation Order’ relating to the disciplinary framework for military judges:

“In the Current Dialogue with the Military Judiciary, the CDS isn’t Listening”, 18 August 2020

 

This escalated over the course of 2020, during which the majority of the military judges made increasingly pointed judgments regarding their view that the Designation Order contravened the right of an accused, under subsection 11(b) of the Canadian Charter of Rights and Freedoms [Charter], to a trial before an independent and impartial tribunal.

At one point, it led to what can only be described as an ultimatum by Military Judge, Commander Sandra Sukstorf:

“R v Bourque, 2020 CM 2008: The Rule of Law Applies to the Chief of the Defence Staff”, 21 July 2020

 

That ultimatum was essentially ignored by the (then) CDS.  Therefore, the military judges escalated their response in the context of the repeated Charter applications by defence counsel.  This led, eventually, to a series of judgments and judicial orders staying prosecutions in several courts martial.  Not surprisingly, the Director of Military Prosecutions (DMP) appealed these judgments:

“Military Judicial Independence: I have heard of orders, and rumours of orders …”, 26 September 2020

“Judgments as ‘Remedial Measures’”, 2 October 2020

 

Those appeals culminated in the judgment of the Court Martial Appeal Court of Canada (CMAC) in R v Edwards; R v Crépeau; R v Fontaine; R v Iredale, 2021 CMAC 2 [Edwards et al], which was handed down 11 June 2021.

Of course, after the stays of prosecutions in the autumn of 2020 and before the judgment in Edwards et al has handed down, we heard the lamentations from certain quarters that the Code of Service Discipline was crumbling and that everything was a shambles.  We’ve heard that before.  I suspect that we will hear that in the future.  The merit of such concerns tends to have a disproportional relationship with the hyperbole with which it is expressed:

“R v MacPherson et al. – military judicial independence in Canada redux”, 27 October 2020

 

There was a period of a few months when the outcome of the issue was in doubt.  However, DMP continued with prosecutions.

And the result of the appeal in Edwards et al prompted me to examine the outcome of courts martial after the CMAC held that military judges continued to constitute a sufficiently fair and independent tribunal notwithstanding that they are subject to the Code of Service Discipline.  Specifically, I summarized the outcomes of courts martial, conducted after 11 June 2021, in which at least one count of sexual assault was prosecuted.

In the latter half of 2021, ten (10) courts martial concluded in which at least one charge of sexual assault (contrary to s 271 of the Criminal Code and prosecuted pursuant to para 130(1)(a) of the NDA) was laid. The results were:

• 1 x finding of guilty under s 93 of the NDA (Behaved in a Disgraceful Manner) and the sexual assault charge was withdrawn (R v Cousineau).  As of the publication of this Blog post, a judgment for this matter has not been published; I suspect that this outcome was part of a guilty plea resolution;
• 1 x finding of Not Criminally Responsible by Reason of Mental Disorder (R v Waugh).  The judgment for this matter has not yet been published.  I understand that it involved somnambulism (sleep-walking).  In light of the rareness in which such a determination is made, this judgment will be worth reviewing once it is published.
• 1 x prosecution terminated for want of jurisdiction (R v MacPherson, 2021 CM 2014).  DMP is also appealing this judgment.  See my Blog Poste here: R v MacPherson, 2021 CM 2014 – What were they thinking?
• 7 x findings of ‘not guilty’ for all criminal offences of a sexual nature.  In two of the courts martial, the accused faced more than one charge of sexual assault.  And in one other court martial the accused faced a single count of sexual assault and other sexual offences.  In R v Palmer the accused faced 3 x charges of sexual assault.  In R v Brenton, the accused faced 2 x charges of sexual assault and 2 other charges.  In R v Vu, the accused faced a charge of sexual assault, 2 x charges of voyeurism (subs 162(1) and subs 162(4) of the Criminal Code) and 1 x charge of publication, etc. of an image without consent (s 162.1 Criminal Code).  DMP is appealing the judgment in R v Vu.

 

I suspect that people will draw myriad conclusions. Absent specific facts, markedly different conclusions are potentially viable. Some, like Professor Elaine Craig, might argue that this demonstrates that the military justice system is failing where the civilian justice system is more ‘successful’ in prosecutions. Of course, such a perspective might be based upon a perception that Crown prosecutors ‘win’ or ‘lose’ cases depending upon whether a person is, or is not, convicted. Such a perspective can be problematic.  The goal of Crown prosecutors is to ensure that justice is done and that a prosecution proceeds in accordance with the prevailing law.  The goal is not, technically, to ensure that a person is convicted:

The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

Boucher v The Queen, [1955] SCR 16, 24

 

Also, absent greater detail, there is little means of knowing whether the civilian criminal justice system would have produced a greater number of guilty findings – or if civilian prosecutors would have prosecuted the allegations (or if civilian police investigators would have obtained similar evidence).

Absent greater detail, the outcomes could also support a conclusion that prosecutions were being brought based upon weak evidence where decision-makers were loathe to conclude that there was not a reasonable prospect of conviction. Consider the case of MacPherson, supra, in which the presiding judge held that the Code of Service Discipline lacked jurisdiction. It was an historical complaint that pre-dated the coming into force of amendments to s 70 of the NDA on 1 September 1999.  Civilian prosecutors had declined to prosecute the matter. Twice. So, DMP attempted to prosecute the matter before a court martial.  Perhaps they were applying a different standard of ‘Reasonable Prospect of Conviction’.

Other potential conclusions that could be drawn is that the court martial process favours accused more than prosecution before a civil court.  However, there is not much to substantiate the merit of such a conclusion.

It can be said that the dynamic in courts martial differs from that of prosecution before civil courts.  I have discussed this before.  There are two significant factors relevant to prosecution before courts martial that do not tend to arise in prosecutions before civil courts (or, at least, are markedly distinguishable therefrom).

First, the case load for military prosecutors is lower than for their civilian counterparts.  Based upon the information regularly published by the OJAG, there are at least 18 Regular Force Legal Officers in the Canadian Military Prosecution Service (CMPS) under DMP, and a further 8 Reserve Force Legal Officers.  Some of these are supervisory positions, and those officers do not typically act as trial counsel (save, perhaps, if they have an opportunity to appear before the Supreme Court of Canada, even if only for a few minutes).  There are senior Legal Officers with unique positions as well as Regional Military Prosecutors RMP).  And there are legal officers in the Sexual Misconduct Action Response Team or SMART (what a clever acronym).

The most recent DMP Annual Report (FY 2019-2020) describes these positions.  It appears that there are at least 26 military prosecutors:

• 1 x Colonel (DMP)
• 3 x Lieutenant Colonels (1 x Assistant DMP, 2 x Deputy DMP)
• 1 x Appellate Counsel (a Major)
• 1 x Senior Counsel – Policy & Training (a Major)
• 1 x CFNIS Legal Advisor (a Major)
• SMART – 1 x Reserve Force Lieutenant Colonel plus one or more Regular Force Legal Officers at the rank of Major
• 10 x Regional Military Prosecutors (Majors and Captains) – 5 x RMP Offices each with 2 x RMP
• 8 x Reserve Force Prosecutors, including 1 x Lieutenant-Colonel, DDMP Reserves as well as 1 x Lieutenant-Colonel who heads the SMART (see above)

 

These military prosecutors are responsible for prosecution of 40 to 70 courts martial per year.  Granted, there are several ‘supervisors’ who likely do not perform the role of trial counsel.  And the CMPS is also responsible for other ancillary functions (such as review of CFNIS files, policy & training, etc.); however, there are also prosecutors with dedicated tasks of that nature.  There appear to be 10 x Regular Force prosecutors and 6 x Reserve Force prosecutors typically responsible for the prosecution of, on average, 54 courts martial per year.   Assuming that Reserve Force prosecutors carry a case load on 20% of their Regular Force counterparts, that averages to approximately 5 cases per prosecutor each year.

That is a very rough approximation.  The complexity of cases may vary.  More than one prosecutor may be required for a complex case.  Some prosecutors will be newly posted into the CMPS and may sit ‘second chair’ for a few cases before taking on primary responsibility for the prosecution of cases without supervision.  And some prosecutors may be unavailable due to parental/maternity leave, illness, courses, etc.

But we can reliably conclude that the caseload for military prosecutors is not heavy.  And, remember: some of these matters do not proceed to a contested trial.  A not-insignificant number of matters are resolved by guilty plea.  While that does not mean that there won’t be considerable preparation required for the matter, it remains a relevant factor when examining caseload.  This permits what may be characterized as a ‘Cadillac prosecution’: a great deal of time and effort can be dedicated to each prosecution, even if the alleged offences, objectively, fall at the ‘less serious’ end of the spectrum of offences or wrong-doing.

Similarly, the Defence Counsel at Defence Counsel Services have advantages that are not found in the civilian criminal justice system.  Their services are provided to CF personnel free of charge.  An officer or NCM of the CF – who would often be ineligible for ‘Legal Aid’ in most provinces due to their relatively robust salaries – need not worry if he or she can afford a robust defence.  There is no need to take out a second mortgage to pay for a lawyer.

Defence Counsel Services is comprised of a Director (Colonel) a Deputy Director (Lieutenant-Colonel), Appellate Counsel (Major) and five trial counsel (majors and Captains).  There are also seven Reserve Force Legal officers, who regularly contribute to the services of Defence Counsel Services.  The composition of Defence Counsel Services, and the absence of significant expense for the CF members prosecuted before courts martial also permits a robust ‘Cadillac defence’.  [And I acknowledge that other duties of Defence Counsel Services include the provision of Duty Defence Counsel, available by phone 7 days a week, 24 hours a day, to offer advice to CF personnel who are arrested or who are exercising select rights such as the right to silence under s 7 of the Charter or the right to elect trial by court martial.  And Defence Counsel Services is subject to the same factors as the CMPS regarding the availability of personnel: parental/maternity leave, illness, courses, etc.]

In sum, military prosecutors do not carry the same number of files as their civilian counterparts and military defence counsel need not worry if their clients can afford a robust defence.  The dynamic in the conduct of courts martial differs from that of the civilian criminal justice system.  Each matter is potentially subject to concerted testing not only of the evidence, but of the very jurisdiction and procedural structure of the ‘military justice system’.  Charter challenges are common – arguably more common than in the civilian criminal justice system.

All of this is food for thought in light of the MND’s stated policy change.  I note too that it appears that the process of referring investigations and prosecutions of alleged ‘criminal offences of a sexual nature’ to civilian police forces and civilian courts has already begun.  I addressed this issue in a previous Blog post, including the requirement for public direction issued by the CDS and the JAG.  I have yet to identify any public direction of the type that I described as obligatory in my previous commentary.

“The MND’s New Policy and the Rule of Law”, 19 November 2021

 

In the absence of clear and public articulation of the policy implementation of the MND’s announcement last November, several pertinent questions arise.

What if a civilian police force, upon investigating an allegation of sexual assault (or other criminal offence of a sexual nature) against a CF member, concludes that they will not lay a charge under the Criminal Code?  Would a subsequent investigation then be conducted by the Military Police or other military authority?  What if a complainant complained to military authorities that civilian police or prosecutors are not taking the complaint seriously enough?  Would military authorities then intervene?  What if a civilian prosecutor declines to prosecute an allegation of sexual assault against a CF member?  Might military authorities then pursue a type of ‘venue shopping’ similar to what arose in MacPherson? Also, once regulations are enacted for the new Summary Hearing processes, might we see some low-level allegations dealt with in that process in light of the lower burden of proof, and the absence of a right to elect trial by court martial?

One issue that appears to have already arisen is the lack of information available to commanding officers and other CF decision-makers.  Where allegations have arisen, these officers wish to take appropriate steps to ensure that the complainant and accused/respondent are separated in the workplace – presumably principally for the benefit of the complainant.  However, they have no visibility on the investigations being conducted by civilian law enforcement or prosecutions conducted by civilian prosecutors.  And, if the complainant does not inform the relevant chain of command, it would not be surprising if they take no action in regarding the military workplace.

There remain many questions about how the MND’s policy direction is being incorporated into practice; however, we have seen no express public articulation of how this policy intent will be implemented.  There is not a great deal of transparency.  What is clear is that, recently, many prosecutions of sexual assault before courts martial concluded with findings other than ‘guilty’.

“Stand By for Apologies – But, let’s talk about transparency…”, 26 November 2021

 

I contend that there is limited information upon which we may draw reliable conclusions.  Many of the courts martial conducted between mid-July 2021 and 31 December 2021 have not yet produced written judgments.  Depending upon the nature of the proceeding, written judgments may not be forthcoming.  For Standing Courts Martial, tried before a military judge without a Panel, we may have to wait for the written judgment describing the reasons for the findings of the court.  A trial by General Court Martial will not produce reasons for a finding of ‘not guilty’, as that determination is made by the Panel (analogous to a jury).  A judgment of a court martial that is resolved by guilty plea will focus principally on the sentencing (including why the judge accepts a joint submission on sentencing, if the guilty plea also included a joint submission on sentence).  There may be an ‘Agreed Statement of Facts’.  But that is unlikely to explain why the military prosecutor agreed to a guilty plea on what would inevitably be characterized as a ‘lesser charge’.

What I can state, with some confidence, is that there are likely several distinct reasons for the markedly limited number for guilty findings from courts martial (that dealt with sexual assault) over the last half of 2021.  I can also state that this is a relatively small sample size over a limited duration.  Consequently, I suggest that it would be imprudent to leap to conclusions regarding the outcomes.  Nevertheless, those interested in the ‘military justice system’ should take note of those outcomes while monitoring what transpires regarding the prosecution of CF personnel for alleged ‘criminal offences of a sexual nature’ in civilian courts.

Note, too, that it will also be more difficult to monitor the prosecutions before the civil courts of criminal jurisdiction – at least in terms of monitoring ‘military justice’ – since they will not be reported on the Chief Military Judges’ website.  We will have to wait to see if they will be reported as part of the JAG’s Annual Report.  I would not be surprised if they are not reported.  After all, if such allegations are investigated by civilian police and prosecuted by civilian prosecutors before civilian courts of criminal jurisdiction, it would be difficult to suggest that they fall within the JAG’s ‘superintendence of military justice’.

 

Summary Trials

What caught my attention more than the outcomes of the prosecution of sexual assault over the past several months was the trend relating to the use of summary trials.  I consider this to be particularly pertinent in light of the Summary Hearings that will eventually be introduced when, and if, significant portions of Bill C-77[2] finally come into force.

“A few comments on Bill C-77 …”, 28 May 2019

“A Few Comments on Bill C-77 … Redux” 28 May 2019

 

You will recall that two of the principal changes that will be introduced with Summary Hearings are: (1) the burden of proof will be lowered from ‘beyond a reasonable doubt’ to ‘balance of probabilities’; and, (2) the accused (although the provisions avoid the use of the term ‘accused’) will not be permitted to elect trial by court martial.  In other words, a principal function of Summary Hearings – if not the principal function – is that it will be easier to convict the accused of the alleged offence(s) (although, again, the provisions avoid the use of terms like ‘accused’, convict’, and ‘offence’).

It is true that a finding of guilt by a Summary Hearing will not carry a criminal record.  However, most prosecutions by Summary Trial currently do not tend give rise to a criminal record.[3]  It is possible that a conviction by a Summary Trial could give rise to a criminal record, depending upon the offence(s) charged and the punishment imposed.  Generally, any charge (and anticipated punishment) that would give rise to a criminal record would also give rise to a right to elect trial by court martial.

If Parliament and the CF wanted to ensure that criminal records did not arise from Summary Trials, it would have been a simple matter to enact a provision or provisions under the NDA by which conviction at summary trial would never give rise to a criminal record.  I contend that it would be disingenuous to suggest that Summary Hearings have been created for the benefit of the CF members who are prosecuted before those Summary Hearings (although the term ‘prosecuted’ is also avoided in the relevant provisions).

Readers of this Blog will know that I have raised concerns previously that CF decision-makers have turned away from using the Code of Service Discipline for its intended purpose and have increasingly adopted the use of administrative processes – including, but not limited to, Remedial Measures, Administrative Reviews, and compulsory release – in order to punish alleged wrong-doing.  And those CF decision-makers can assert that they are using administrative measures for a valid ‘corrective’ purpose – but if it looks like a punitive duck, walks like punitive duck, and quacks like a punitive duck, then it’s a punitive duck.

“The Military Justice System – Use it or Lose it”, 17 October 2021

 

I have suggested previously that CF decision-makers are avoiding the use of the Code of Service Discipline, particularly where a charge or charges would give rise to a right to elect trial by court martial, in order to avoid the scrutiny of independent judges.  I have also posited that they have done so, at least in part, because they are aware that the allegations likely would not stand up to meaningful scrutiny by independent decision-makers who have a robust understanding of the law.

So, let’s take a look at the last 20 years of data regarding Summary Trials (or, at least, the data available from 1999, when the majority of provisions in Bill C-25 came into force, up to 31 March 2020, which is the end of the last fiscal period covered by the most recently published JAG Annual Report).  The following data was gleaned from successive JAG Annual reports (found here), and each fiscal period is measured from 01 April until 31 March of the following year.

Year	Summary Trials	Courts Martial
1999-2000*	506	27
2000-2001	1150 to 1156	63
2001-2002	1194 or 1195	67
2002-2003	1693	73
2003-2004	1610 to 1737	56
2004-2005	1407 to 1481	64
2005-2006	1505 to 1604	40
2006-2007	1733 to 1737	67
2007-2008	2040 to 2045	78
2008-2009	1898 to 1934	65
2009-2010	1942 to 1944	56
2010-2011	1770 to 1839	69
2011-2012	1425 to 1438	62
2012-2013	1210 to 1248	64
2013-2014	1128 to 1162	67
2014-2015	827 to 857	70
2015-2016	721 to 759	47
2016-2017	553 to 612	56
2017-2018	596 to 636	62
2018-2019	533 to 594	51
2019-2020	483	55

 

Some caveats and observations are in order:

First, there is inconsistency in the number of Summary Trials reported for most years in successive JAG Annual Reports.  I reviewed the JAG Annual Reports that are available on the Government of Canada website for the OJAG.  These encompass the Annual Reports from the FY 2008-2009 to 2019-2020.  These discrepancies could be due to delays in updating Unit Disciplinary Registers and providing data from the various offices of the Regional Services Division of the OJAG.  While that does not instill great confidence in the data (particularly in light of the considerable resources dedicated to the ‘Annual Report’), it is still possible to identify trends.  The derogation in the reported data for each year is not huge, but, neither, in some cases, is it insignificant.  The data for courts martial is much more consistent – there are fewer such tribunals convened each year and the reporting is far more reliable.

Second, the number of courts martial in any given year can be impacted by successful applications or, more particularly, appeals, including R v Trépanier, 2008 CMAC 3, R v Leblanc, 2011 CMAC 2, Beaudry v R, 2018 CMAC 4.  Successful applications/appeals by accused can temporarily disrupt the operation of courts marital.  Contrary to the comments offered by some ‘doomsayers’, none of these appeals, even when successful, have brought about the ultimate decline or demise of the ‘military justice system’.

Finally, the ‘spike’ in summary trials from 2002-2003 to 2010-2011 can likely be explained by the increase in operational tempo in Afghanistan.  Note, however, that, but for the odd interruption due to judgments on appeal, operational tempo had a markedly more limited impact on courts martial compared to the numbers of summary trials.  2007-2008 saw a peak for both courts martial and summary trials, but the curve for the former was markedly less distinct than the latter over the entire period.

I do not offer here an in-depth statistical analysis of the data collected by the Office of the JAG over the past 20 years.  Frankly, even JAG Annual Reports do not offer significant statistical analysis.  The annual data is certainly discussed, as are key developments in case law.  However, it is debatable whether the JAG Annual Reports present significant statistical analysis.

The data for the FY 1999 to 2000 is limited, in part, by the fact that most amendments to the Code of Service Discipline did not come into force until 1 September 1999, half-way through the fiscal period.  We can observe an increase in summary trials in 2002 to 2003, which coincides with initial operations in Afghanistan.  There is a slight dip in 2004 to 2005 and then a gradual increase from 2005 to 2008, when summary trials peak.  Summary trial numbers remain relatively high (roughly between 1800 and 1900 per annum) until 2011.  The numbers then drop between 2011 and 2014, but still remain higher than the number of summary trials before 2002.

These increases and decreases appear to correlate with: (1) initial deployment to Afghanistan and the initial stages in the Global War on Terror (2002-2004); (2) followed by operations by the CF in Kabul (2004 to 2006); (3) a return to operations in Kandahar (2006); (4) the end of so-called ‘combat operations’ in 2001; and, (5) the withdrawal of CF from Afghanistan (2014).  The increases and decreases in the number of summary trials appears to reflect the relative operational tempo of the CF.  I suggest that this is indicative, but not determinative.  This is based upon limited data points.

But note the rather rapid decline in Summary Trials from 2015 to 2020.  The number of summary trials per year in the last three fiscal years reported by the OJAG was no more than half the annual numbers recorded after the implementation of Bill C-25 and before the CF’s deployment to Afghanistan (i.e., from 2000 to 2002).

The size of the Canadian Forces in 2015 to 2020 was roughly comparable to the size of the CF in 2000 to 2002.  Even if the CF were slightly larger 20 years ago, that would not explain this marked discrepancy.

And the period from 2015 to 2020 was the period in which Op HONOUR purportedly represented the CF’s concerted effort to address sexual misconduct.  The Code of Service Discipline represents one of the principal tools available to the CF chain of command to maintain the discipline, efficiency, and morale of the CF.[4]  Yet, if anything, there was a sharp decline in the use of the Code of Service Discipline from 2015 to 2020.

Why?

Could it be that CF decision-makers turned away from the Code of Service Discipline in favour of using administrative measures to punish allegations of sexual misconduct?

As I describe above, the available data does not necessarily permit a definitive conclusion.  However, the information that is available is indicative of such a trend.  And doctrinally, we know that administrative measures such as Remedial Measures under Defence Administrative Order and Directive (DAOD) 5019-4 and compulsory release under Chapter 15 of the QR&O are not subject to judicial scrutiny at the time that decisions are made under the policy or legislation.

A CF member who wishes to challenge such a decision must first exhaust the CF grievance process, even if it takes several years (as is typically the case).  Once that ‘adequate alternative remedy’ is exhausted, a CF member could, at his or her own expense, seek judicial review before the Federal Court.  As I have indicated before, the principal raison d’être for the CF grievance process is to serve as a litigation avoidance mechanism:

“Grievance Myths – A Remedy for Canadian Forces Personnel?”, 28 July 2021

 

And, on judicial review, the Court will focus not on the initial decision by a commanding officer or Director Military Careers Administration (DMCA), or even that of the initial authority in the CF grievance process.  The Court will focus on the decision of the final authority.  That affords the CF chain of command up to two supplemental opportunities to fix any procedural defects in the impugned decision and, if necessary, reverse-engineer a justification for the same outcome.

Some unreasonable decisions cannot be remedied by the ‘mulligan’ offered by the CF grievance process.  However, where CF decision-makers employ significant punitive administrative measures (e.g., compulsory release), by the time the grievance process has run its course, the affected CF member will likely be: (a) released from the CF; (b) utterly demoralized by the mechanisms that favour the chain of command; and/or, (c) obliged to address the ‘shifting target’ presented by the use of various administrative mechanisms that the CF employs to avoid accountability.

It is difficult to offer definitive evidence that, under Op HONOUR, CF decision-makers increasingly shifted to reliance on ‘administrative punishments’ in lieu of the Code of Service Discipline.  After all, the narrow definition that the OJAG has applied to ‘superintendence of military justice’ since the implementation of Bill C-25 has limited to the collation of data in the JAG Annual Reports to the Code of Service Discipline.  Notwithstanding the grievances, remedial measures, and other administrative processes form part of what may be defined as a broader definition of ‘military justice’, the data for these processes is not included in the JAG Annual Reports.

Although administrative processes typically constitute personal information pertaining to the affected officer or NCM – and, therefore, may not be broadly publicized – it would be permissible to collate anonymous data for purposes similar to the collation of data pertaining to the Code of Service Discipline.

Under Op HONOUR, data was collected regarding the administrative measures pursued in relation to complaints of sexual misconduct.  However, there is little or no meaningful cross-correlation with the Code of Service Discipline.  Some limited deductions can be drawn.  For example, persons released under Item 1(a) of the Table to article 15.01 of the QR&O would, presumably, have been released following conviction by a court martial, since release under this item requires a sentence of Dismissal or Dismissal with Disgrace imposed by a court martial.  However, that represents a limited and discrete data point.

It is not possible to determine whether the compulsory releases under either item 5(f) or item 2(a) in any given year, and reported in the Op HONOUR Progress Reports, coincided with a related Code of Service Discipline proceedings.  Although a release under item 2(a) should typically only be ordered where the affected CF member was found guilty of one or more offences either by a Code of Service Discipline tribunal or a civilian court, there have been circumstances in which DMCA has ordered compulsory release under item 2(a) without any such conviction (and I contend that such a decision would be improper in light of the requirements of a release under item 2(a)).

The blunt reality is that the reporting of administrative action taken under Op HONOUR, and reported in the Op HONOUR Progress Reports, has been inconsistent, sporadic, and difficult to correlate with the Code of Service Discipline data reported in the JAG Annual Reports.  I suspect that there are much more detailed ‘internal’ reports generated by various National Defence offices; however, where these are not generally publicly available, the do not contribute much to transparency.

What we can discern is that there has been a dramatic drop in the reliance on summary trials within the CF.  Recall that, prior to the enactment of Bill C-25 in 1998, various reviews of the Code of Service Discipline, conducted in the 1990s, indicated that there was also a drop, at that time, in the reliance on the Code of Service Discipline to maintain the discipline, efficiency, and morale of the CF.[5]  There were compelling indications that the chain of command had shifted its focus to administrative or ‘informal’ measures to address alleged breaches of discipline.  The received wisdom at that time was that this signalled a breakdown in the confidence that the chain of command had in the Code of Service Discipline.  The received wisdom of the day also suggested that the reliance on measures other than the Code of Service Discipline in order to maintain the discipline of the CF was contrary to our values as Canadians and the respect for the rule of law.  It signalled reliance on mechanisms that were neither fair nor transparent.

The trend by CF leadership in turning away from the Code of Service Discipline as a tool to maintain the discipline, efficiency, and morale of the CF was a cause for concern in the 1990s.  It appears that this trend has returned.  I suggest that it should, again, be a cause for concern.

I have argued before that the Code of Service Discipline represents but one tool available to the CF chain of command to maintain the discipline, efficiency, and morale of the CF.  However, it is a key tool, particularly where our focus is on discipline and conduct.  There are three key factors that recommend the Code of Service Discipline as the best tool to address allegations of misconduct and breaches of discipline: (1) it is transparent; (2) it is designed to ensure at least a modicum of fairness; and, (3) it typically requires the involvement of legal professionals and can often require judicial supervision of the process.

In contrast, administrative measures, which typically constitute personal information that must be protected under the Privacy Act, are not particularly transparent.  While these processes are designed to ensure a modicum of fairness in the application of the relevant policies, it is becoming increasingly obvious that many CF decision-makers are either not following these processes properly or, worse, are not even reading the policy instruments before relying on the powers and functions conveyed therein.  One of the potential reasons for this failing is that, unlike the exercise of powers by a presiding officer at Summary Trial, there is no obligatory training (delivered by legal officers from the Office of the JAG) for the officers who wield the decision-making authority.[6]

Finally, there is no obligation for decision-makers to seek legal advice from their unit legal advisor when exercising administrative decision-making powers and functions (although such a prudent course of action is not prohibited).[7]  It is becoming painfully obvious that few ever seek such advice, which can be particularly problematic when it is equally obvious that many of these decision-makers have not fully read or understood the relevant policy instruments.

The possibility of timely judicial scrutiny of decisions or actions taken under these administrative policies would present an effective check and balance regarding the exercise of non-transparent decision-making by decision-makers who are not expressly trained in the exercise of such functions and who, it appears, cannot be bothered to read the relevant policy instruments.  However, that possibility does not exist – no independent judge will scrutinize such decisions until the CF grievance process is exhausted.  That can take several years, and the decision-makers are neither independent not possess professional legal training.

 

Conclusion

While there has, recently, been a relatively low ‘conviction rate’ for sexual assault allegations prosecuted before courts martial, a meaningful analysis regarding the cause of these outcomes would require more information than I have presented above.  For the matters prosecuted over the past year, there is limited information presently available to the public.

Whether or not a matter leads to conviction relies significantly on the merit of the evidence presented at trial.  In some circumstances, it can turn on other issues such as jurisdiction or the impact of alleged infringement of Charter rights.  However, a principal factor remains the merit of the evidence presented before the tribunal.

I suggest that a more immediate concern for CF decision-makers is the relatively compelling case that can be made for the suggestion that CF decision-makers appear to be turning away form the Code of Service Discipline as a tool to maintain the discipline, efficiency, and morale of the CF.  While history may not always repeat itself, it can echo through subsequent years.

If CF decision-makers are turning away from the Code of Service Discipline because they find it inefficient or ineffective, it would be a worthwhile endeavour to examine how both factors could be improved.

However, if CF decision-makers are turning away from the Code of Service Discipline because they find that fairness, independence, and reasonableness in decision-making represent an ‘undue hardship or burden’ in the exercise of their statutory powers, then I suggest that the problem the CF faces is much deeper and more fundamental.

The obligation for compliance with rules and orders is not imposed solely on subordinates; CF decision-makers must also follow the rules and obligations imposed on them.  The DND and CF Code of Values and Ethics is not just relevant to those alleged to have committed sexual misconduct or who have refused vaccination against COVID-19.  Those obligations extend to all CF personnel.  And we should be asking ourselves: what is more prejudicial to good order and discipline? When a Corporal fails to follow a unit standing order, or when a senior CF decision-maker fails to follow the ‘black letter’ direction in a DAOD that requires the decision-maker to do something in order to comply with fundamental principles of fairness in statutory decision-making?

Those are questions that we will examine over the coming days.

 

[1] An Act to amend the National Defence Act and to make consequential amendments to other Acts, SC 1998, c35.

[2] An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, SC 2019, c 15.

[3] National Defence Act, RSC 1985, c N-5, s 249.27.

[4] R v Généreux, [1992] 1 SCR 259, 293 to 297; R v Stillman, 2019 SCC 40.

[5] For example: Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (Ottawa: Ministry of National Defence, 1997); Commission of Inquiry into the Deployment of Canadian Forces to Somalia, Dishonoured Legacy: The Lessons of the Somalia Affair, (Ottawa: Public Works and Government Services Canada, 1997).

[6] QR&O, art 101.07.

[7] QR&O, arts 107.03, 107.11.