Delay and the Prosecution of LGen Cadieu (ret’d)
There has been a fair bit of discussion concerning the recent stay of prosecution of criminal allegations against Lieutenant-General (LGen) Trevor Cadieu (retired) since it was first reported, on Tuesday, 10 October 2023. In particular, there was much attention given to the statements by the presiding judge, Justice O’Brien, that:
“… someone should be held accountable for allowing nine months to elapse before providing defence counsel with the complainant’s first statement …” to military police investigators.
“That someone is not defence counsel who each, orally and in writing, early and repeatedly requested the complainant’s statement to little if any avail … It is not enough for the military to hand off ‘the file’ to the Kingston Crown office in July without providing essential disclosure.”
(Ashley Burke, “Sexual assault charge stayed against former senior officer once poised to command army” (10 October 2023), online: CBC News <https://www.cbc.ca/news/politics/sexual-assault-charge-stayed-trevor-cadieu-1.6991932>)
In the wake of the decision, the office of the Canadian Forces Provost Marshal (CFPM), Simon Trudeau, was asked for comment. Here’s what the Globe and Mail reported:
In a statement to The Globe and Mail late Wednesday, the military police placed responsibility with the Crown.
“It is the responsibility of the Office of the Crown Attorney to provide disclosure to the defence counsel. Any questions regarding the disclosure of material between the prosecution and defence counsel should be directed to the Office of the Crown Attorney,” said Lieutenant-Commander Jamie Bresolin, a spokesperson for the Canadian Forces Provost Marshal.
(Marieke Walsh, “Sexual assault charges stayed against former top general in Canadian Forces, judge blames military police for delays” (11 October 2023) online: Globe and Mail <https://www.theglobeandmail.com/canada/article-sexual-assault-charges-stayed-against-former-top-general-in-canadian/>)
I’ll be blunt – as I usually am – it’s not good enough for the CFPM to try to throw the civilian Crown Attorney under the bus. That doesn’t answer all the questions that surround the delay that frustrated the administration of justice in this matter.
To paraphrase the late Ricky Ricardo: “Simon, you got some ‘splaining to do …”
In this Blog, I will describe the nature of the delay that can be attributed to the military police and its impact on the trial. And I will pose some questions that are pertinent to offering the Canadian public a better understanding of what transpired and the maladministration that contributed to the outcome of this trial.
But before I do so, I will address a tangential issue that is nevertheless relevant to our discussion: why was this matter before a civil court of criminal jurisdiction?
I will then turn my attention to the discrete issue of delay arising from CF maladministration.
Why was this matter before a civil court?
As often arises lately, when matters of alleged sexual misconduct arising in the CF are brought before civil courts of criminal jurisdiction, the news media rehashes past reporting on the so-called “Independent External Comprehensive Review” by former Supreme Court of Canada Justice Louise Arbour and the subsequent direction by the (then) Minister of National Defence (MND) that all criminal offences of a sexual nature will be referred to civil authorities and civil courts, notwithstanding the concurrent jurisdiction of the Code of Service Discipline. [And we will set to one side the fact that, even now, not all such allegations and offences are being referred to civil police and civil courts.]
Consequently, I suspect that many Canadians may be under the misapprehension that this is why the allegations against LGen Cadieu (ret’d) and his co-accused were before a civil court of criminal jurisdiction. And I use the term ‘misapprehension’ because the principal reason why this matter was before the Ontario Court of Justice (ON CJ) was because the Code of Service Discipline (aka, the military justice system) did not have jurisdiction of the allegations or the charges.
The allegations dated to 1994 and 1995, when Trevor Cadieu was an Officer Cadet, and not a Lieutenant-General. Moreover, based upon the allegations by the complainant, charges were laid against both LGen Cadieu (ret’d) and a second person who was also, at that time, an Officer Cadet in the Canadian Forces (CF). Initially, the charges were laid separately.
Whether one or both of the accused were civilians at the time that the charges were laid, or when the trial was held, is not determinative of jurisdiction under the Code of Service Discipline. Pursuant to subs 60(2) of the NDA, persons who were subject to the Code of Service Discipline at the time of the alleged offence face “continuing liability” under the same, even if they have released from the CF prior to the trial of the allegations:
Every person subject to the Code of Service Discipline under subsection (1) at the time of the alleged commission by the person of a service offence continues to be liable to be charged, dealt with and tried in respect of that offence under the Code of Service Discipline notwithstanding that the person may have, since the commission of that offence, ceased to be a person described in subsection (1).
The nature of the offence charged, and the date of the allegations are relevant to jurisdiction. The Code of Service Discipline gained jurisdiction over sexual assault (and other variations of this offence, including aggravated sexual assault and sexual assault with a weapon), where the offence is alleged to have occurred in Canada, on 1 September 1999, when the amendment of section 70 of the National Defence Act (NDA) under Bill C-25 came into force.
This jurisdictional limitation was confirmed by the Court Martial Appeal Court of Canada (CMAC) in R v MacPherson, 2022 CMAC 8. Granted that decision post-dated, by approximately two months, the decision to charge LGen Cadieu (ret’d) and the co-accused within the civilian criminal justice system. However, there appears to have been no attempt to charge him under the Code of Service Discipline. This was likely a prudent decision in light of the decision by the military judge in R v MacPherson, 2021 CM 2014 at first instance, which was subsequently affirmed by the CMAC approximately a year later.
Also, at the time of the alleged offences, s 69 of the NDA prescribed a 3-year limitation period on the exercise of the Code of Service Discipline. That limitation period was also removed by Bill C-25. I would suggest, however, that the principal jurisdictional issue driving this decision was the lack of jurisdiction pursuant to the version of s 70 of the NDA that was in force in 1994 and 1995.
Therefore, although some reporters pointed out that this was the second stay of prosecution of sexual assault “transferred” from the CF to the civilian criminal justice system, the two matters were in the civilian criminal justice system for markedly different reasons. The charges against LGen Cadieu (ret’d) and his co-accused were not initially laid under the Code of Service Discipline. Therefore they were not ‘transferred’ from one system to another. The charges were laid, for the first time, within the civilian criminal justice system.
In R v Harrison, 2023 ONCJ 392 [Harrison], the accused was first charged under the Code of Service Discipline after an 11-mionth investigation by the military police. Nine months later, the charges were transferred to the civilian criminal justice system by the Director of Military Prosecutions, purportedly based upon prosecutorial discretion. I elaborate on why this was a problematic decision in earlier blogs posts:
R v Harrison, 2023 ONCJ 392: Don’t Be Sold a Bill of Goods (Redux), 24 September 2023
Although the prosecutions in both Harrison and against LGen Cadieu (ret’d) were stayed for delay, the sources of the delays differed. Nevertheless, both experienced delay because of problematic decision-making and/or actions by CF decision-makers and actors. What we don’t know is whether those actors and decision-makers have been held accountable, or ever will be.
Delay in the Prosecution of LGen Cadieu (ret’d)
Justice O’Brien identified various contributing factors to the delay in the prosecution of LGen Cadieu (ret’d) and his co-accused. These included:
As this blog focuses on the administration of justice within the CF, I will be focusing on the first of these factors – the delay in providing disclosure by the military police. I will also focus on this factor in light of the above-mentioned disingenuous response by the spokesperson for the CFPM reported by the Globe and Mail. And, as I explain below, this was the principal cause for delay in this matter.
The overall delay in the prosecution of LGen Cadieu (ret’d) calculated by Justice O’Brien, attributable to the judicial system and the Crown, after deducting delay attributable to the defence, was 19 months and 22 days. This was 1 month and 22 days above the presumptive limit of 18 months established by the Supreme Court of Canada in R v Jordan, 2016 SCC 27 [Jordan] in relation to the accused’s right to trial within a reasonable time under para 11(b) of the Canadian Charter of Rights and Freedoms (Charter).
Before delving into the delay attributable to maladministration by the military police, I will offer a couple of observations regarding delay generally. First, based upon the above iteration of factors that contributed to delay, a casual observer may be surprised that, in light of all of those factors, a delay of ‘only’ 19 months and 22 days arose.
However, some delay in the prosecution of criminal offences in unavoidable and expected. That is why the SCC set a presumptive ceiling of 18 months for matters in which there is no preliminary hearing. And the presumptive ceiling is not inflexible. Where matters are complex or where there are exceptional circumstances that contribute to delay, the delay arising from such complexities and exceptional circumstances may be factored into the calculation (essentially, deducted from the delay considered in relation to para 11(b) of the Charter).
In this matter, the Crown, quite reasonably, conceded that, while there were complicating features in this matter, the Crown did not take the position that the nature of the disclosure or the allegation made this a complex case as described by the Supreme Court of Canada in Jordan. Nor did the Crown take the position that delays prior to the setting of dates for trial were the result of “exceptional circumstances” as defined under Jordan.
The Crown did argue that 87 days in total, which the Crown attributed to “defence delay”, should have been deducted from the overall delay of 20 months and 13 days (11 days for one of the accused) until the anticipated end of the trial forecasted to be 26 February 2024. Had the Crown succeeded with this argument, the overall relevant delay would have fallen below the 18-month threshold in Jordan.
However, Justice O’Brien rejected that submission, and calculated “defence delay” as 18 days for LGen Cadieu (ret’d) and 21 days for the co-accused. I won’t delve into the nature of Justice O’Brien’s overall calculation as that is amply explained in the reasons for his decision. When that decision is published on CANLII, members of the Canadian Public will be able to read those reasons for themselves.
Consequently, I will turn my attention to the delay in the provision of disclosure by the military police.
Delay by the Military Police
Before we discuss the detailed timeline of the maladministration of disclosure by the military police, I will point out that this was yet another matter in which the military police took several months to lay any charges. Readers of this Blog will recall the consternation expressed by Justice Richardson in Harrison (supra) that the military police took 11 months to lay a charge in a relatively uncomplicated case. At para 11 of his judgment, Justice Richardson stated:
On March 29, 2021, exactly eleven months after her initial report, the military police charged Mr. Harrison with one count of sexual assault under section 130 of the National Defence Act. 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]
As I have indicated previously, while Justice Richardson may have been alarmed to the point of incredulity by such delay, for those of us who have had the opportunity to observe the military justice system on a regular basis, such unreasonable investigative delay by the military police is not uncommon. And this continues to arise notwithstanding the obligation under s 162 of the NDA that: “Charges laid under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit.”
I have previously argued that one of the principal reasons why such delay has not been corrected – in other words, why military police have not been held accountable for such delay – is because they “front-load” such investigative delay before charges are laid. In that way, it will not be factored into calculation of delay under para 11(b) of the Charter, which focuses on post-charge delay. Moreover, it is not uncommon for the accused to be placed on considerable restrictions, both under the Code of Service Discipline and under administrative processes administered by his (or her) chain of command while the military police drag their feet on such investigations.
Similarly, in the investigation of the allegations against LGen Cadieu (ret’d), the complainant provided the first of three statements to the military police on 4 September 2021. Two subsequent statements would follow, but the first statement purportedly provided the grounds for the charges against LGen Cadieu (ret’d) and his co-accused. They were not charged, separately, until mid-June 2022, nine months later. While Justice O’Brien did not express the same incredulity as Justice Richardson, it remains clear that he was unimpressed with delays by CF actors and decision-makers.
As we know, the fact that LGen Cadieu (ret’d) was being investigated by the military police for sexual assault was reported in October 2021, and the source of that information was not an official CF or Departmental news release. This was one of several allegations against General Officers and Flag Officers (GOFO) that were leaked to various news media. And we, the Canadian public, still don’t know what, if anything, has been done to investigate those leaks. That issue will be discussed in a blog in the near future.
The complainant would later provide two subsequent statements to the military police: one on 19 October 2021, and a third on 30 March 2022. It is the failure to disclose these statements in a timely fashion that contributed significantly to delay in this matter.
As is common practice, when LGen Cadieu (ret’d) and his co-accused were arrested and charged, they were given dates for their “first appearance” before the ON CJ a few weeks later. The co-accused’s first appearance was 4 August 2022. LGen Cadieu’s (ret’d) first appearance was initially to have been 9 September 2022; however, based upon Justice O’Brien’s written reasons regarding the stay of prosecution, the matter could not proceed that day because the charge was laid before the ON CJ in Ottawa, and was not available to the ON CJ in Kingston until 29 September 2022. The latter date was the actual “first appearance” date for LGen Cadieu (ret’d) in Kingston. Both accused retained counsel before their first appearances.
The military police provided “initial disclosure” to the civilian Crown Attorney on 25 July 2022. That is reasonably timely. It was 5 to 6 weeks after the charges were laid against the two accused and before either of their “first appearance” dates.
The problem, however, was two-fold. While the Crown may have received the disclosure from the military police, it was not available for release to the defence counsel at the first appearances. It had to be reviewed, vetted, and, where necessary, redacted. Second, as the defence counsel would later learn, the military police had not disclosed to the Crown, as part of this “initial disclosure”, all three of the complainant’s statements that had been provided to the military police. And, despite the detail of Justice O’Brien’s judgment, we still do not have an explanation why the military police appear to have withheld, initially, those two statements.
By 15 September 2022, the Crown’s office was still vetting the disclosure, and the Crown requested another 4 weeks to do so.
It was not until 16 November 2022 that the Crown provided the initial disclosure to the defence counsel. Moreover, the Crown only provided summaries of statements by other witnesses and did not disclose the actual audio/video interviews of the complainant and other witnesses on the basis that the interviews were being reviewed for potential vetting. At that point, observers might be inclined to accept the assertion by the CFPM’s spokesperson – presumably on behalf of the CFPM himself – that it “… is the responsibility of the Office of the Crown Attorney to provide disclosure to the defence counsel. Any questions regarding the disclosure of material between the prosecution and defence counsel should be directed to the Office of the Crown Attorney …”.
However, here’s the problem with that assertion: that disclosure did not include the complainant’s second and third statements to the military police. We also do not know what, if any, assistance the military police provided the civilian Crown in vetting or preparing the disclosure.
By mid-December 2022, the Crown disclosed additional audio/video recordings of interviews of third-party witnesses but still did not disclose the complainant’s second and third statements. Based upon Justice O’Brien’s written reasons, it appears that the Crown did not have those statements.
In January 2023, LGen Cadieu’s (ret’d) counsel informed the court that they had still not received disclosure of the two subsequent statements, as well as other disclosure, necessitating further adjournment to February 2023.
By February 2023, a new Assistant Crown was assigned to the matter (following the abrupt departure of the first Assistant Crown assigned to the prosecution), and the Crown informed the court and defence counsel that the Crown had yet to receive a redacted copy of the complainant’s interview of 4 September 2021 from the military police.
By 17 February 2023, the Crown provided additional disclosure to the defence, including a second statement from the complainant to the Canadian Forces National Investigation Service (CFNIS). The third statement from the complainant remained missing. At this point, the two accused had been charged for 8 months.
By 2 March 2023, the Crown counsel advised the court that the Crown had asked the CFNIS to provide the complainant’s third statement. It was eventually provided 9 March 2023.
Justice O’Brien’s judgment describes the further steps in the prosecution of these allegations, including the timeline relating to pre-trial meetings between the Crown and defence counsel and “judicial pre-trial” (JPT) meetings between the Crown and defence counsel before a judge of the ON CJ. These types of meetings are held in order to identify issues for trial, discuss (and possibly resolve) potential applications or motions, in an effort to ensure that the process is as efficient as possible. Such meetings cannot realistically be held until defence counsel have the benefit of the full disclosure of the case.
Other issues arose, including the joining of what were initially separate prosecutions, as well as applications under the Criminal Code relating to 3rd party records and other facets relating to the prosecution and defence of allegations of sexual assault. Such applications are not uncommon and, again, defence counsel are not in a position to evaluate the requirement for, and strength of, such applications until they have full disclosure.
The efficiency of a criminal prosecution (and defence thereof) turns on the efficiency and thoroughness of disclosure. And, while it is true that this obligation is placed principally on the Crown, the investigating law enforcement agency or organization is inextricably involved in that process as it is the police investigators who provide the Crown with the case. It’s very much as the famous television show states (paraphrasing for the Canadian context): “In the criminal justice system, the people are represented by two separate yet equally important groups. The police who investigate crime and the Crown Attorneys who prosecute the offenders…”.
It remains unclear why it took until March 2023 to provide defence counsel with all of the statements from the complainant, even though the military police received the last of these statements a year earlier. Based upon Justice O’Brien’s written reasons, it appears that the two subsequent statements were not even provided to the Frontenac Crown Attorney until well after the “initial disclosure” was provided. It remains unclear why all three of those statements were not provided to the Crown Attorney at the outset. I have my suspicions about why that occurred, and, if I am correct, it does not reflect well on the military police. In fact, what I suspect occurred would have amounted to an abuse of process.
However, it would be speculative to offer such a suggestion at this point in time. We simply do not have sufficient information in the public domain to know precisely what had happened and why. And that’s a big part of the problem – not only with the prosecution of LGen Cadieu (ret’d), but with many of the matters arising within the military justice system, or which the CF transfers to the civilian criminal justice system.
We don’t have all the relevant information. And, in part, it’s because the necessary questions are either not being asked, or, if they are being asked, the public is not receiving adequate answers. There are pertinent questions that need to be asked in relation to the broader issues that I have raised repeatedly in this space. And I will be posing those questions in the near future. However, for the purposes of the present discussion, let’s focus on the questions arising from the prosecution of LGen Cadieu (ret’d).
We will start with the first question that arose, chronologically: Why did this investigation take 9 months to conduct before a charge was laid?
Granted, regular readers on this blog will also be aware that I have criticized the military police for overly hasty investigations that are not remotely thorough enough. There is no set time that an investigation must take. But “investigative foot dragging” can be as problematic as hastily jumping to conclusions and failing to consider the context in which allegations arise. Charging someone with a criminal offence can massively disrupt their lives, even if they are acquitted and/or exonerated. It is not a decision that should be taken lightly. And delays in justice affect the accused, the complainant, and the confidence that the public has in the relevant justice system. That is as true for the civilian criminal justice system as it is for the military justice system.
Second, who was responsible for leaking the existence of (and perhaps details of) the CFNIS investigation relating to LGen Cadieu (ret’d)?
The fact that the leak arose approximately a month after it began is troubling. The fact that there have been many such leaks is even more troubling. The fact that these leaks occurred after the JAG and the CFPM recommended against publicly announcing the investigations, contrary to the wishes of a particular senior governmental official, is cause for concern and, I suggest, cause for inquiry.
Third, is it correct that the military police failed to – or expressly chose not to – disclose the complainant’s second and third statements when the military police provided the “initial disclosure” to the civilian Crown Attorney?
Fourth, if the military police did not provide the subsequent complainant’s statements to the civilian Crown Attorney, was it due to negligence, or was it intentional? Was there another reason?
Fifth, if the military police intentionally chose not to disclose the complainant’s subsequent statements to the civilian Crown Attorney, what was their justification for refusing to do so?
Finally, who, if anyone, will be held accountable for this maladministration?
Following the news reports on the stay of prosecution, many people expressed concerns about accountability, much as Justice O’Brien had done in his decision. And make no mistake – a stay of prosecution is a means of enforcing accountability. It is a blunt instrument, but one that sends a message.
The Crown – by which I mean the Crown in Right of Canada and in Right of Ontario, as distinguishable from the Frontenac Crown Attorney – was barred from prosecuting LGen Cadieu (ret’d) and his co-accused because various governmental actors took too long to bring the allegations before the court in a manner that permitted the accused to make full answer and defence.
I suspect that many people are upset by the fact that this matter will not proceed to a trial on its merits. Some may be outraged, since outrage has increasingly become the currency of the realm these days.
I suspect the complainant is upset – and with good reason – that the matter won’t proceed to trial.
Various spokespeople for victims’ advocacy groups will likely voice their outrage for similar reasons. They may also allude to the fact that the accused won’t have their opportunity to defend themselves. However, we should remember that applications for stays are brought by the accused. And sometimes I wonder if victims’ advocacy groups mention concerns about the “rights of the accused” in an effort to appear objective and non-partisan.
It is true, however, that stays of prosecution will leave many people, including complainants, accused, participants in the justice process, and the Canadian public, generally, with a sense of incomplete justice or “unfinished business”.
As the majority of the SCC stated at para 19 of Jordan:
As we have said, the right to be tried within a reasonable time is central to the administration of Canada’s system of criminal justice. It finds expression in the familiar maxim: “Justice delayed is justice denied.” An unreasonable delay denies justice to the accused, victims and their families, and the public as a whole.
And, inevitably, people will want someone to blame.
I suggest that anyone looking for one or more people to blame will benefit from meaningful and thorough responses to the above-mentioned questions.
Contrary to the CFPM, I am disinclined to point the finger principally at the civilian Crown Attorney. It is true that there was delay by the Crown’s office in vetting the disclosure. It is also true that the Crown’s office experienced a disruption when the assigned Assistant Crown abruptly departed the office, necessitating reassignment to another Assistant Crown. However, it appears that both of those factors arose, and were resolved, before the full disclosure of the investigation was provided to the Crown Attorney and, thus, to the defence counsel.
Consequently, I suggest that the principal factor regarding delay up to March 2023 was the incomplete disclosure of the investigative file by the military police. And this delayed the subsequent steps in the prosecutorial process.
I suggest that is why Justice O’Brien specifically raised the issue of the importance of disclosure in the concluding paragraphs of his written reasons. That is why he stated: “Someone should be held accountable for allowing 9 months to elapse before providing defense counsel with the complainants first statement.” And he pointedly observed: “The late shift from separate trials to a joint trial complicated scheduling, and did not mitigate the delay but the damage had largely been done and baked in by then.”
And the baker responsible for that stale bread was not the Crown Attorney.
In my next blog post, I will offer a recap of the so-called “sexual misconduct scandals” in the CF thus far. I will then provide some observations regarding conclusions that we might draw from these matters. And those conclusions will lead to further questions, of a broader nature. And I will conclude that discussion with some observations on accountability. In anticipation of that discussion, I will leave you with an observation:
We have witnessed several senior officers who have, de facto if not de jure, been removed from command and relieved from performance of military duty based upon allegations that were determined to be unreliable, or, in some cases, were not even reliable enough to warrant laying charges. In at least one matter the general officer was not even accused of doing something that was objectively improper. We have witnessed a series of problematic actions and decisions that have either frustrated the administration of justice or which have, quite possibly if not probably, constituted abuses of power or process. Yet, the senior officers who were ultimately responsible for those decisions and actions still occupy their positions.
Why is that?