Canadian Military Justice – 2021 Retrospective

[Editor’s Note: Prompted by a brief discussion with an American colleague, I offer a brief retrospective of Canadian military justice in 2021.  This is, by no means, a comprehensive review of all that transpired in Canadian military justice over the past year.  However, I offer some points to consider as well proceed into the new year.]

2021 was a tumultuous year for Canadian military justice.  It was not unique in that regard; 2020 was similarly turbulent, and we can safely anticipate that 2022 will continue this trend.

The year started with the hearing of an appeal before the Court Martial Appeal Court of Canada (CMAC) regarding an issue that had been building throughout 2020: the independence of the military judiciary.  Over the course of 2020, defence counsel appearing before courts martial consistently argued that an order from the Chief of the Defence Staff (CDS) that placed military judges under the disciplinary authority of a General Officer at National Defence Headquarters (NDHQ) impaired the independence of those military judges.  Eventually, counsel also challenged, unsuccessfully, the legislative provisions that not only provided for this state of affairs but appeared to require it.

Despite repeated applications that were largely successful in obtaining judicial declarations that the CDS order was inconsistent with section 11(d) of the Canadian Charter of Rights and Freedoms (Charter) – to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal – the (then) CDS consistently refused to withdraw that order.  Courts martial are statutory ad hoc courts that do not bind subsequent courts martial; therefore, the same applications were repeatedly raised before subsequent courts martial, with predictable results.

Military judges gradually escalated their judgments from simple declarations to stays of prosecutions in light of the CDS’ seeming intransigence in withdrawing his impugned order.  (See: In the Current Dialogue with the Military Judiciary, the CDS isn’t Listening and Judgments as ‘Remedial Measures’).  Following the stays of serious allegations and charges, the Crown took two significant steps.  First, they appealed the judgments in which military judges stayed prosecutions.  Second, the CDS suspended (but did not cancel) his order.

These judgments culminated in two separate grouped appeals before the CMAC.  Both appeals concerned the same issues.  In the judgment for the combined appeals of R v Edwards; R v Crépeau; R v Fontaine; R v Iredale, 2021 CMAC 2, issued 11 June 2021, a unanimous bench of the CMAC held that military judges were wrong to equate the Military Judges Inquiry Committee (MJIC) to a disciplinary process for military judges parallel to the Code of Service Discipline and were incorrect that the CDS order impaired their independence.  The CMAC also dismissed, with perfunctory reasons, the appeal in R v Crépeau challenging the legislative basis for subjecting military judges to the Code of Service Discipline.

The portion of the judgment pertaining to the MJIC was not particularly surprising (see: Disciplining Military Judges).  However, the CMAC also held that subjecting military judges to the disciplinary authority of the ‘chain of command’ did not undermine their institutional independence (one of the three legs of judicial independence, along with security of tenure and financial security).  The CMAC described the prevailing test that has evolved over various judgments over more than 40 years, including: Committee for Justice and Liberty v National Energy Board, [1978] 1 SCR. 369, R v MacKay, [1980] 2 SCR 370 (a pre-Charter case involving military justice), Valente v The Queen, [1985] 2 SCR 673, MacKeigan v Hickman, [1989] 2 SCR 796, R v Lippé, [1991] 2 SCR 114 and Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 SCR 3.

The Court ultimately held that, in the unique context of the military justice system – a system established to promote the discipline, efficiency, and morale of the armed forces of Canada raised by Her Majesty – a reasonable and “… informed person, viewing the matter realistically and practically – and having thought the matter through could … reach no other conclusion than [that] military judges meet the minimum constitutional norms of impartiality and independence as required by section 11(d) of the Charter.”

The CMAC judgment was unanimous; therefore, there is no appeal ‘as of right’ to the Supreme Court of Canada. Various accused brought applications for leave to appeal to the Supreme Court of Canada.[1]  As of 31 December 2021, there is no indication whether leave will be granted.

Contemporaneous with the hearing of these appeals and the subsequent judgment from the CMAC, allegations of sexual misconduct arose, first against the outgoing CDS, General Jonathan Vance, and then against various other General Officers and Flag Officers (GOFO), including General Vance’s Successor, Admiral Art McDonald.

These allegations would lead to the removal of various GOFO from their command positions or appointments.  However, a few caveats are warranted regarding these matters.  First, not all of the allegations against the GOFO could be characterized as ‘sexual misconduct’.  Indeed, the principal allegation against General Vance was that he had a years-long affair with an officer who was subordinate in rank and who may (or may not) have been under his command for a couple of those years.  While the failure to report a personal relationship (in which there may arise a conflict of interest) could potentially be a disciplinary offence, it is neither criminal in nature, nor ‘sexual misconduct’.  (See: Some Observations on Recent Developments in the Canadian Forces)

In other cases, the allegations brought against select GOFO did not rise to the level of criminal or disciplinary misconduct – some were vilified for actions that were either objectively innocuous (e.g., golfing with General Vance after allegations against him arose) or were consistent with the administration of justice in Canada (e.g., providing letters of support for a CF member sentenced for a criminal offence). (See: Facts Before Outrage)

Nevertheless, any allegation against a GOFO, regardless of merit or consequence, represented fuel for the fires of speculation and indignation in the news media.  It led to what the same news media characterized as a growing ‘Sexual Misconduct Scandal’, in which allegations against GOFO (some of which were broadly disparate, and which did not constitute sexual misconduct) were grouped together.

Most of the allegations of sexual misconduct are what can be characterized as ‘historical’ allegations, arising more than 10 years ago.  Some are alleged to have occurred over 30 years ago.  Some of these allegations appear to be connected to claims made by complainants under a class action (Heyder v Canada (Attorney General), 2019 FC 1477), for which the deadline for submission of claims had been extended to 2021.

Few of the allegations have led to charges.  As of 31 December 2021, charges have only been laid against three current or former GOFO, two of which relate to historical allegations of sexual assault.

Even though few charges have been laid, and no trials have yet been conducted, the GOFOs who faced allegations and accusations – including allegations that did not constitute criminal or disciplinary offences – have certainly be subject to trial by media, including the frailties and shortcomings arising in such a process.  The accuracy of the reporting on these matters has been inconsistent.  (See also: I have a theory about what is important to the news media …)

What is also noteworthy is that it appears that all of those GOFO were relieved from performance of military duty absent actual reliance on articles 101.09 or 19.75 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O).  These provisions – both of which are Ministerial regulations created under section 12(2) of the National Defence Act (NDA) – provide rudimentary procedural fairness.  While the procedural fairness provided in these provisions is limited, it represents a minimum standard of fairness in public law decision-making.  It appears that these provisions were, essentially, ignored, when the GOFO were ‘suspended’[2] by the (then) Acting CDS, Lieutenant-General Wayne Eyre (as he then was).  Similarly, there is no indication that either the ’letter’ or the ‘spirit’ of the CDS’ Guidelines for Removal from Command were followed in any of those matters.  In one puzzling public statement, (then) Lieutenant-General Eyre indicated that there was “…  no set process, procedure or guidance for making [a] decision …” regarding whether a senior commander, such as the Commander of the Royal Canadian Navy, should be removed for that position.  It was puzzling, as there is express policy guidance on just such a decision.

Contemporaneous with these developments, Justice Morris Fish, a former Puisne Judge of the Supreme Court of Canada, completed his Third Independent Review of the NDA, as required under section 273.601 of the NDA.  This was completed on 30 April 2021 and submitted to the (then) Minister of National Defence, Harjit Sajjan.  It was made public 1 June 2021.  In addition to the anticipated subjects of the Code of Service Discipline, Military Police Governance, and the CF Grievance Process, in light of the repeated commentary and speculation in the news media regarding ‘sexual misconduct’, Justice Fish also included a brief chapter and observations on sexual misconduct.  Although this chapter represented less than 10% of the 400-page report, most of the news media coverage of the report focused on Justice Fish’s observations relating to ‘sexual misconduct’.

Shortly after Justice Fish completed his statute-mandated ‘Independent Review’, the Minister of National Defence announced that another former Puisne Justice of the Supreme Court (and former United Nations Commissioner on Human Rights), Louise Arbour, would conduct an ‘Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces’ focusing on harassment, sexual misconduct and other harmful behaviours.  Recalling that former Justice Marie Deschamps conducted an ‘External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces’ in 2015, this announcement was viewed by many as yet another review in lieu of actual action by the government.

The (then) Minister of National Defence, Harjit Sajjan, came under increasing pressure for his alleged mishandling of sexual misconduct in the Canadian Forces (CF), including allegations that he intentionally avoided discussing with the (then) DND/CF Ombudsman serious allegations that were brought against the (then) CDS, General Vance, in March 2018.  On 26 October 2021, following an election called by the Prime Minister in August 2021 (less than 2 years into Parliament’s 4-year mandate), Sajjan was replaced by Anita Anand.

Shortly before the federal election was called, the Canadian Forces Provost Marshal (CFPM) announced that no charges would be laid against the new CDS, Admiral McDonald[3], in relation to an investigation that had taken approximately 6 months.  Admiral McDonald had stepped away from his duties as CDS to permit the investigation to proceed unfettered by his presence.  Following the CFPM’s announcement, Admiral McDonald attempted to communicate with the Prime Minister and Prime Minister’s Office to indicate his desire to resume his role as CDS.  However, his calls were ignored.  When he announced his intention to return to his duties, he was placed on indefinite leave by an Order in Council issued by the Governor in Council (the federal Cabinet), even though it was within the capacity of the (then) Minister of National Defence simply to place Admiral McDonald on Leave.

Shortly after her appointment as Minister of National Defence, Minister Anand and the Prime Minister made several announcements.  Minister Anand announced that investigations into allegations of sexual misconduct would no longer be investigated by Military Police and that prosecution of sexual misconduct allegations against members of the Canadian Forces would no longer be prosecuted under the Code of Service Discipline but would be referred to civil courts.

Minister Anand subsequently had to clarify that her announcement was related to allegations of criminal offences of a sexual nature.  ‘Sexual Misconduct’ that did not constitute an offence under the Criminal Code, would still, presumably, be investigated by Military Police, and would be liable for prosecution under the Code of Service Discipline (as would, incidentally, criminal offences not of a sexual nature).  (See: Minister of National Defence Announcement – Sexual Misconduct)

What was not discussed in these initial announcements was the requirement under the NDA for such instructions to the CFPM and the Director of Military Prosecutions (DMP) to emanate from the CDS and Judge Advocate General, respectively.  The NDA does not permit the Minister of National Defence to issue direction, personally, to the CFPM and the DMP.  No further details have yet been provided on the specific orders and timeline for this change in policy. (See: The MND’s New Policy and the Rule of Law)

Shortly after that announcement was made, the Prime Minister and Minister of National Defence made two further announcements.  First, by Order in Council, Admiral McDonald was removed from the position of CDS, based upon the Crown’s broad discretion to remove an officer from the ‘at pleasure’ appointment of CDS.  General Wayne Eyre, who had been Acting CDS for most of 2021, was subsequently appointed CDS.  Second, the Minister and the new CDS then issued a public apology to CF survivors of sexual misconduct.

Other ‘news’ involving military justice in Canada was largely over-shadowed by the more salacious aspects of allegations of sexual misconduct against GOFO.  However, the importance of such developments should not be discounted.

In R v McGregor, 2020 CMAC 8, a panel of the CMAC (coincidentally, the same judges who heard the appeals in R v Edwards, et al) held that section 8 of the Charter (“Everyone has the right to be secure against unreasonable search or seizure”) does not apply extra-territorially, even where a member of the CF is: (a) outside Canada because of duty, and not voluntarily; and, (b) subject to the extra-territorial application of the Code of Service Discipline. (See: Extra-Territorial Application of the Canadian Charter of Rights and Freedoms).  Leave to appeal to the Supreme Court of Canada was granted on 14 October 2021.

Also, as of 31 December 2021, the Office of the Chief Military Judge will have been without a designated Chief Military Judge for over 21 months.  Colonel Mario Dutil, the last Chief Military Judge, retired on 20 March 2020, following an unsuccessful attempt by the Director of Military Prosecutions to prosecute him by court martial.  (See: The Next Chief Military Judge; Director of Military Prosecutions Withdraws Charges Against the Chief Military Judge of the Canadian Forces; ‘Bad Facts’ and Awkward Law: The Director of Military Prosecutions v Deputy Chief Military Judge, et al., 2020 FC 330)

Since Colonel Dutil’s retirement, Lieutenant-Colonel Louis-Vincent d’Auteuil, the Deputy Chief Military Judge, has been the de jure Acting Chief Military Judge by virtue of section 165.29 of the NDA.  There are presently four serving military judges, which is the typical number of military judges in the CF.  All that is required to designate a Chief Military Judge is an Order in Council (similar to the Orders in Council that were issued to renew the mandate of the current JAG in June 2021, and to appoint a new CDS in November 2021).  (See: Seriously … what about the Chief Military Judge?)

However, over 21 months have passed without the Governor in Council designating a new Chief Military Judge.  And this inaction has arisen during a period in which the issue of the independence of military judges was repeatedly raised at court martial and was eventually the subject of a series of appeals before the CMAC.  If leave to appeal to the Supreme Court of Canada is granted in Edwards et. al., the ongoing reluctance (refusal?) to designate a new Chief Military Judge may well become a relevant factor in that appeal.

Finally, a recurring concern appears to be the continued use of administrative measures and processes in lieu of the Code of Service Discipline.  There have been repeated examples of this phenomenon regarding allegations of ‘sexual misconduct’.  Instead of laying a charge against a CF member, his (or her) chain of command will initiate administrative measures, including Administrative Review.  The results of such processes can be remedial measures (which are ostensibly intended to correct deficiencies); however, compulsory release is increasingly the result.

However, the administrative processes that lead to decisions of compulsory release from the CF lack many of the safeguards that would arise before a service tribunal such as a court martial.  In particular, the ‘accused’s’ right to make full answer and defence before an independent and impartial decision-maker can be significantly impaired.  There is a lack of transparency and accountability when administrative processes are used as improper substitutes for the Code of Service Discipline.  (See, for example: The Military Justice System – Use it or Lose it; Stand By for Apologies – But, let’s talk about transparency…)

The phenomenon has also extended to actions where a CF member exhibits hesitancy to be vaccinated against COVID-19, or refuses vaccination.  Despite a specific offence created under the NDA – section 126 ‘Refusing immunization, tests, blood examination or treatment’, which has its origins in the flu pandemic of 1918 to 1920 – no CF member has been charged with this offence in relation to COVID-19 vaccination.  Instead, the CF has undertaken a broad (and largely boilerplate) process of remedial measures and Administrative Review that will lead, presumably, to compulsory release.  (See: The Canadian Forces’ COVID-19 Vaccination Policy)

Over the course of 2021, the Canadian Forces has faced challenges similar to those faced by the armed forces of the United States, and other allies in NATO and the ‘5 Eyes’ community.  The obvious comparator concerns sexual misconduct and gender equity.  However, comparison and examination should not stop there.  Equally, decision-makers and stakeholders in the evolution and reform of military justice should endeavour to avoid capture from a single issue.  While ‘sexual misconduct’ is a relevant and pressing concern, it is not the sole issue that the armed forces of democratic nations face.

The President of the United States recently signed into law the National Defense Authorization Act (FY22 NDAA), which introduces reforms to military justice in the United States.  Interestingly, some of these reforms reflect changes that were introduced to Canadian military justice in 1998 under Bill C-25.  Over the course of the subsequent two decades, further reforms (albeit, of a limited and piece-meal nature) have been introduced, and several analyses have been conducted (not all of which have been entirely consistent).  But comparative examination of developments in other Anglo Common Law jurisdictions will likely be of some assistance as the United States embarks upon its own reforms.

[1] The style of cause for the Application for Leave to Appeal to the SCC: Matelot de première classe C.D. Edwards, et al. v Her Majesty the Queen, Case 39820.

[2] This is the term that is most frequently used by news media and CF spokespersons when referring to the actions taken against specific GOFO.  ‘Suspension’ is not a term of art in military law.

[3] In the interests of transparency: the author of this retrospective was one of Admiral McDonald’s counsel.

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