Disciplining Military Judges
There have been recent developments regarding the application for judicial review brought by the Director of Military Prosecutions (DMP) regarding the prosecution of the Chief Military Judge, Colonel Mario Dutil, under the Code of Service Discipline. You will recall that this was the subject of one of my previous blogs and was also the subject of an Op Ed article I authored for the Defence Watch column.
Consequently, before continuing with my commentary on the impact (or lack thereof) of Vavilov on the administration of the affairs of the CF, I would like to return to the ongoing debacle arising from the above-mentioned prosecution.
On 5 February 2020, Justice Martineau, who is presiding over the application for judicial review brought by DMP, invited the parties to offer written submissions regarding the impact, if any, of the judgment by Commander M. Pelletier, Military Judge, on an application brought in the court martial R v Master-Corporal Pett, 2020 CM 4002 [R v MCpl Pett]. Justice Martineau also observed that an application, similar to that in R v MCpl Pett, would be the subject of a judgment from Commander Sukstorf, Military Judge, in the court martial of R v Corporal D’Amico. Commander Sukstorf’s judgment is anticipated on 26 February 2020.
Consequently, now would be an opportune time to examine the issue of judicial independence in light of a recent policy statement by the Chief of the Defence Staff (CDS), and which was the subject of the application in R v MCpl Pett.
R v MCpl Pett
MCpl Pett brought an application that he could not be tried before an impartial and independent tribunal, as guaranteed by section 11(d) of the Canadian Charter of Rights and Freedoms (Charter), by virtue of an order issued by the CDS on 2 October 2019. He sought a declaration to that effect, and a stay of proceedings.
I suggest that the judgment arising from MCpl Pett’s application was neither a victory for the applicant, nor a victory for DMP. It was, however, a victory for military judges. That doesn’t really come as a surprise, as it is a judgment by a military judge. While this conclusion may strike some as being a bit ‘cheeky’, Commander Pelletier’s judgment is significant not just for the prosecution of the Chief Military Judge – and it is a significant development in that particular drama – but it can be significant for the administration of military justice generally. Commander Pelletier was sending a not-so-subtle message to DMP, the CDS and the Office of the JAG.
Permit me to explain.
MCpl Pett was charged with, and eventually convicted of, behaving with contempt towards a superior officer (under s 85 of the NDA) and ill-treating a person who by reason of rank was subordinate to him (under s 95 of the NDA). However, MCpl Pett’s misconduct was not determinative of the independence of the military judiciary.
What was pertinent in the application brought by MCpl Pett’s defence counsel was the order issued by the CDS following upon the problematic circumstances of DMP’s attempt to prosecute the Chief Military Judge under the Code of Service Discipline.
On 2 October 2019, General Jonathan Vance, the CDS, issued an order designating the officer appointed to the position of the Deputy Vice Chief of the Defence Staff (who is an officer not below the rank of Rear Admiral or Major-General) to exercise the power and jurisdiction of a commanding officer with respect to any disciplinary matter involving a military judge “… on the strength of the Office of the Chief Military Judge…”. Concurrently, the CDS designated the Commandant, Canadian Forces Base Ottawa and Gatineau (an officer not below the rank of Captain (Navy) or Colonel) to exercise the powers and jurisdiction of a commanding officer with respect to any disciplinary matter involving an officer or non-commissioned member, other than a military judge, on the strength of the Office of the Chief Military Judge. This order replaced a previous order of similar, though not identical, nature.
Although this order was not initially promulgated outside select confines of the Canadian Forces, it can be found in Annex A to the judgment for R v MCpl Pett, 2020 CM 4002.
One interesting consequence of this order (although tangential for the purposes of the discussion that follows) is that it appeared to bar the Chief Military Judge from exercising disciplinary authority over his (non-judicial) subordinates in the Office of the Chief Military Judge.
The more significant impact of this order is that it appeared to limit the constitutional independence and impartiality of the military judiciary. Certainly, that was the nature of the application brought by MCpl Pett’s defence counsel, Major A. Bolik and Capt D. Sommers.
In their written submissions, MCpl Pett’s counsel argued that this matter “… highlighted the symbiotic and interrelated roles and status of military judges as both judges and officers.” They argued that the CDS’ order demonstrated the problematic status of military judges as independent judicial officers. In their oral arguments, they asserted that the impugned order demonstrated “… that the possibility of interference by the military hierarchy crosses a ‘bright line’ which objectively threatens judicial independence and violates any accused’s rights under paragraph 11(d) of the Charter.” They consequently argued that this defect is systematic and cannot be cured simply by ignoring or declaring the impugned order unlawful.
Ultimately, counsel for MCpl Pett argued that he could not be tried before an independent and impartial tribunal as guaranteed by section 11(d) of the Charter, as not only the CDS order, but the mere standing of military judges as ‘officers of the Canadian Forces’ – subject to prosecution under the under the Code of Service Discipline – undermined their independence.
In other words, the status of military judges as officers of the Canadian Forces undermined the independence and impartiality of the military bench, institutionally. Were the presiding judge to agree with this proposition, it could conceivably bar the use of courts martial – and the Code of Service Discipline – in its present construct.
Counsel for DMP argued that the CDS order did not give rise to concerns over judicial independence and it was “… simply an update of a similar order previously issued to take into account an administrative reorganization which saw the creation of a position of DVCDS.” Not surprisingly, counsel for DMP argued that military judges are members of the Canadian Forces, so it should not be seen as controversial that they are subject to the Code of Service Discipline, similar to every member of the Canadian Forces, and they can be charged, dealt with and tried under the Code as they have always been.
It is not uncommon to encounter the argument “… but we have always done it this way …” whenever decisions or actions under the National Defence Act (NDA) are challenged. It’s not a very compelling argument.
In his judgment, Commander Pelletier summarized DMP’s position as follows:
 The essence of the respondent’s argument is that Parliament has stated that military judges need to be officers and that officers are subject to the Code of Service Discipline. The Supreme Court of Canada has recognized the dual role of military judges as judicial officials and military officers. Hence a reasonable observer would not apprehend bias when the military hierarchy takes measures such as the impugned order to ensure that the Code of Service Discipline is applied to military judges. That is especially so given the many protections built into the NDA and QR&O ensuring judicial independence. These measures should lead me to conclude that the applicant has not met its burden to demonstrate that the “bright line” referred to has been crossed. Therefore, the respondent concludes that no allegations pertaining to judicial independence of military judges can be brought on an institutional level. The only receivable challenge to the impugned order could be from a military judge facing charges and alleging that the designated commanding officer has not exercised his or her discretion appropriately.
In other words, all is correct with the Code of Service Discipline, just as the Supreme Court of Canada purportedly held in Généreux and Stillman. Indeed, Commander Pelletier identified that counsel for DMP expressly argued that the issue of the independence of the military judiciary has long been settled.
Presumably, those also weren’t the droids they were looking for.
Ultimately, Commander Pelletier concluded that the CDS’ Order was unlawful because it undermined judicial independence and impartiality. He declared the CDS’ order to be of no force or effect where it pertains to the exercise of jurisdiction, by the DVCDS or VCDS, regarding any disciplinary matter involving a military judge. More significantly, he concluded that military judges are not liable to be charged and dealt with under the Code of Service Discipline while they are sitting as military judges. However, as I note below, this conclusion was, problematically, not part of any declaration by the military judge. In so doing, Cdr Pelletier adroitly avoided having to conclude that trial before a military judge alone does not offer an independent and impartial tribunal. However, uncertainty remains regarding how his conclusion, that military judges are not subject to the Code of Service Discipline, should be treated.
Consequently, MCpl Pett’s trial could, and did, proceed. Although MCpl Pett’s counsel were successful in challenging the CDS order, and reinvigorating legal debate concerning the independence and impartiality of the military judiciary, they did not obtain their desired outcome for their client. Ultimately, it was not a victory for the applicant.
But neither was it a victory for DMP. The most significant immediate effect of Commander Pelletier’s judgment will be its potential impact on the prosecution of the Chief Military Judge, which has been dragging on since January 2018, when Colonel Dutil was first charged. Commander Pelletier appears to have read into the NDA an immunity for military judges against prosecution under the Code of Service Discipline (without expressly stating that he was reading this into the NDA). Presumably, this significant result is what prompted Justice Martineau to invite written argument from the various parties to DMP’s application for judicial review before the Federal Court. If Justice Martineau concurs with Commander Pelletier’s analysis, then the prosecution of Colonel Dutil will be dead in the water even before his counsel, the intrepid Me Luc Boutin, brings an application for stay due to delay. Such an application presumes that someone, somewhere, can identify a military judge who could actually preside over Colonel Dutil’s court martial.
Arguably, Justice Martineau has been offered an attractive option, based upon thorough analysis by Commander Pelletier, to resolve DMP’s application in a succinct manner.
Thus, DMP can hardly chalk up a ‘W’ as a result of Commander Pelletier’s judgment, even though they successfully resisted the remedy sought by the applicant.
A military judge has handed down a judgment that concludes that military judges are not liable to be charged or tried under the Code of Service Discipline while they occupy judicial office. The real ‘winner’ in this judgment is the military judiciary.
What I propose to do below is offer some observations on the nuances of the judgment handed down by Commander Pelletier, and its implications for the Code of Service Discipline.
Commander Pelletier summarized the relevant legal issues as follows:
He applied the framework judgment of R v Lippé,  2 SCR 114, a 30-year old judgment of the Supreme Court of Canada that addressed the independence of municipal court judges in Québec who remained members of the Barreau du Québec notwithstanding occupying judicial functions. While analogous to the duality of military judges’ status as both judges and commissioned officers (i.e. an extension of the executive), there are distinctions that can be drawn, and Commander Pelletier drew those distinctions.
So, let’s examine how Commander Pelletier answered the five aforementioned questions.
The first question is relatively uncontroversial. Military Judges are officers of the Regular Force. They, like any officer or non-commissioned member (NCM) of the Regular Force remain liable under the Code of Service Discipline at all times. There are some distinctions for Military Judges. For example, they can only be tried by court martial. However, like any other member of the Regular Force, they can be charged by an officer or NCM of the Canadian Forces National Investigation Service (CFNIS). They can be prosecuted by DMP. Well, ostensibly, they could be prosecuted if they could find a military judge who would not be obliged to recuse him- or herself from presiding over the court martial.
On a tangential note, Commander Pelletier offered this comment, similar to one I made in a previous Blog, concerning the significance (or lack thereof) of DMP’s appointment of ‘Special Prosecutors’:
 I have considered the DMP Policy Directive on appointment of special prosecutors and it does nothing to change the legislated situation. In law, there is only one official – the DMP – who is granted the authority to decide who is brought before a court martial and on what charges, regardless of whether the military prosecutor representing the DMP is a legal officer from the Office of the JAG or not. The DMP cannot cease to exercise his or her office in relation to a given matter. He or she is the DMP and acts under the general supervision of the JAG in his/her prosecutorial exercise and remains under the command of the JAG. [footnote omitted]
Commander Pelletier begins to lay the groundwork for his eventual judgment when answering the second question: Does the liability of officers holding the office of Military Judge under the Code of Service Discipline raise concerns of judicial impartiality?
He concludes that this status could lead an informed observer to reasonably conclude that military judges do not enjoy the essential conditions of judicial independence. Consequently, there can be a reasonable apprehension of bias – institutional bias, not personal bias – in the mind of a fully informed person appearing before a military judge.
The principal concern, according to Commander Pelletier, is the impact on institutional impartiality when a military judge can be subjected to two parallel disciplinary regimes: one under the Code of Service Discipline, the other under the Military Judges Inquiry Committee. In so doing, he appears to equate the two regimes to serving the same purpose. As I mention below, based upon the relevant legislation, I do not draw this same conclusion. Moreover, Commander Pelletier does not, at this juncture, delve into the potential impact on judicial independence and impartiality where a military judge is subject to charge or prosecution by members of the executive who may, or may not, be pleased with a military judge’s decisions. He leaves that examination to his analysis of the fourth question. Arguably, that issue is as relevant to the second question as it is to the fourth.
But that is not all that Commander Pelletier states when answering the second question. There are two additional significant issues he raises – and I suggest that one was intentional, the other likely not.
Commander Pelletier includes not-insignificant commentary concerning the recommendations by the Honourable Patrick J. LeSage, who conducted the second ‘Independent Review’ of the military justice system. Justice LeSage, like the late Chief Justice Lamer (who conducted the first ‘Independent Review’), recommended the establishment of a permanent court, rather than ad hoc courts martial. Commander Pelletier also highlighted Justice LeSage’s recommendation that military judges be given a distinct rank of ‘military judge’.
Commander Pelletier stated: “Despite being closely supported by members of the Office of the JAG throughout his work, Justice LeSage stated that he was not given access to any work product related to the establishment of a permanent military court, which he supported.” I suppose that ‘closely supported’ is one way to describe the interaction between the Office of the JAG and Justice LeSage during his independent review. A more cynical perspective might lead one to conclude that the Office of the JAG ensured that Justice LeSage benefitted principally from the institutional perspective of military justice, rather than an independent perspective, by providing a controlled ‘guided tour’ of the military justice system. This cynical view appears to be supported by Justice LeSage’s complaint about access to information.
In his comments, Commander Pelletier sends what I consider to be a not-so-subtle message concerning the absence of any progress regarding key recommendations offered by Justice LeSage.
The second issue arising in Commander Pelletier’s comments is more subtle and might not have been in his contemplation.
Earlier in his judgment, Commander Pelletier echoed comments from the majority of the Supreme Court of Canada in R v Stillman, 2019 SCC 40, stating that “… the military justice system has come a long way in the last 30 years, growing and responding to developments in law and society, a dynamic evolution that will no doubt continue into the future.”
Whether it was his intention or in his contemplation at the time, Commander Pelletier’s analysis regarding the second question highlights the principal driving force behind the evolution of the military justice system over the past 30 years. And I suggest that, contrary to what was intimated by the majority of the Supreme Court of Canada in Stillman, it was not driven by ‘policy intent’ to modernize the military justice system.
Rather, as illustrated by Commander Pelletier’s analysis, much of the evolution of the military justice system has been in response to challenges brought by applicants who were subject to the Code of Service Discipline. And these challenges are presented principally by the legal officers of Defence Counsel Services.
Arguably, cases like Leblanc and Trepanier have done as much, or more, to bring about significant change, than ‘Independent Reviews’ or studies have done. After all, a judgment of the Court Martial Appeal Court of Canada that would have the effect of halting not just one prosecution, but all prosecutions, under the Code of Service Discipline, will tend to focus the attention of DMP, the Office of the JAG, the Minister, the Governor in Council, and Parliament. They are also likely to be less affected by a selective ‘guided tour’ by the Office of the JAG.
One need only look at Commander Pelletier’s analysis to identify the distinction between the impact of challenges before courts of competent jurisdiction compared to the impact of reviews or policy studies. As a result of court challenges, the executive (and where necessary, Parliament, at the executive’s bidding) acted to implement reform. Meanwhile, we appear to still be waiting for action regarding significant recommendations from two Independent Reviews.
Having found that judicial impartiality (specifically, institutional impartiality) is adversely affected by subjecting military judges to the Code of Service Discipline, Commander Pelletier turns his attention to whether the regime under the NDA affords sufficient safeguards to alleviate these concerns of judicial independence. (I note, however, that, strictly speaking, the concerns that Commander Pelletier raised in answering the second question pertained principally to judicial impartiality, not judicial independence).
Counsel for DMP presented several safeguards that purportedly ensured judicial independence. Commander Pelletier agreed with many of these, while observing that, in some cases, the safeguards offered limited protection. One submission from DMP that Commander Pelletier rejected whole-heartedly was the suggestion that judicial independence was safeguarded by the requirement to obtain legal advice both before a charge is laid against a military judge and before a CO makes a determination regarding whether the charge ought to proceed. Not surprisingly, Commander Pelletier identified that the legal advice to a charge layer or CO (who are members of the executive) would come from the Office of the JAG (also a member of the executive). This is hardly a robust safeguard, particularly when one considers that there have been recent cases brought to court martial where military judges have either held that there was no prima facie case, or have overtly questioned whether the matter should have been preferred for court martial.
The analysis for the third question is the lengthiest and most detailed part of Commander Pelletier’s judgment. It is also the point at which he expands upon a subtle argument (first introduced in his analysis of the second question) that shapes his judgment. While he focuses on several purported safeguards to judicial independence – protection from relief from performance of military duty, litigation immunity at s 164.231 of the NDA, the limitation that only the Chief Military Judge may assign duties to military judges – Commander Pelletier focuses principally on the existence and role of the Military Judges Inquiry Committee.
Commander Pelletier concluded that the NDA, and its subordinate legislation, provides sufficient safeguards to ensure that the system would not give rise to a reasonable apprehension of bias in the mind of a reasonable, well-informed person. I would not be surprised if, when reading the judgment, a military prosecutor might be encouraged about the end result by the time he or she reached this point in the judgment. (However, I must also acknowledge that a military prosecutor might do as I did, and skip to the end to first see how the military judge concluded his judgment).
By this stage in the judgment, Commander Pelletier might appear to have set conditions for a conclusion that the NDA provides sufficient safeguards for both independence and impartiality of military judges. However, I suggest that the principal factor in his analysis of the third question established a foundation, built upon the existence and role of the Military Judges Inquiry Committee, for his eventual conclusion that military judges are immune from prosecution under the Code of Service Discipline. He elevated the provisions relating to the Military Judges Inquiry Committee to an interpretive tool whereby he could then conclude that Parliament’s intent was that the Military Judges Inquiry Committee would not only be the principal tool, but the sole tool, by which military judges are disciplined.
This is the most significant aspect of the judgment. There is no provision under the NDA that expressly or implicitly immunizes military judges from the Code of Service Discipline. Ostensibly, Parliament created a disciplinary regime for all officers and NCM of the CF (subject to express limitations) and also created a regime whereby the fitness of military judges could be reviewed if necessary. Arguably, there is nothing in the NDA that suggests that the Military Judges Inquiry Committee supplants the Code of Service Discipline for military judges. Nor does Commander Pelletier point to any specific provision. Instead, he concludes, at paras 102 and 104:
 The existence of a committee of judicial peers capable of addressing a broad range of issues pertaining to any alleged misconduct or fitness regarding a military judge acts as a significant safeguard to minimize the prejudicial effect of the dual status of military judges as officers and judges. This safeguard must be understood in conjunction with other important safeguards discussed previously, to the effect that military judges are immune from the assignment of duties by members of the executive and are not liable to administrative sanctions, even as a result of an alleged departure from norms of conduct applicable to officers. Any enforcement of such order can and should be done in priority by the Military Judges Inquiry Committee to ensure that the safeguarding effect of the measure is maximized.
 This conclusion entails that from a legislative and regulatory perspective, the structure applicable to the discipline of military judges meets the requirement of judicial impartiality, as long as the significant safeguard provided by the Military Judges Inquiry Committee is allowed to operate efficiently. This safeguard ensures that military judges are immune from any disciplinary or administrative measures initiated by the executive and prevents any reasonable apprehension of bias from forming in the mind of a reasonable, well-informed person looking at the structure governing the military judiciary and the courts martial system.
Without declaring any provisions of the NDA of no force or effect, or reading down any provision of the NDA, Commander Pelletier relies on the existence and role of the Military Judges Inquiry Committee, in effect, to ‘read in’ an immunity from the Code of Service Discipline for military judges, while they occupy judicial office (and without expressly indicating that he is reading in such a provision).
What Commander Pelletier does not describe is what disciplinary regime should be applied when, and if, a military judge is accused of a Code of Service Discipline offence that has nothing to do with the military judges’ judicial office. Certainly, as I have suggested previously, one logical course of action would be to refer the matter to a civilian court of competent jurisdiction.
Arguably, even if a military judge is alleged to have committed a Code of Service Discipline offence that might also constitute grounds for a review by the Military Judges Inquiry Committee, I suggest that Parliament’s intent under the NDA is clear: there is a general disciplinary regime for all members of the Canadian Forces; and, there is a specific regime for the determination of whether a military judge is fit to remain in judicial office, and which is reviewed by other constitutionally independent judges.
The problem with concluding that the Military Judges Inquiry Committee constitutes a disciplinary regime is that it clearly doesn’t constitute a disciplinary regime in the context understood under the NDA. It is, as with similar committees for civilian judges, an administrative tribunal whose role is to examine a military judge’s continued suitability for judicial office when misconduct is alleged. The ‘disciplinary’ nature of such a tribunal is analogous to the ‘disciplinary’ role of tribunals created by professional regulators such as Law Societies and Colleges of Surgeons (albeit, one that has additional safeguards for a judge’s constitutional independence). But that is not consistent with what constitutes a disciplinary regime under the NDA.
Commander Pelletier does not expressly declare any specific legislation to be of no force or effect. To have done so, he would presumably have relied on section 52 of the Constitution Act, 1982. Neither does he read down any legislation, or expressly read in additional provisions. These remedies are permitted by virtue of section 52 of the Constitution Act, 1982, and by virtue of remedial power under s 24(1) of the Charter. Instead, Commander Pelletier appears to do something roughly analogous – but clearly not the express exercise of these powers – by simply concluding that the Code of Service Discipline does not apply to military judges while they hold office (without overtly describing his specific authority to do so).
Commander Pelletier then carries on, unsurprisingly, to conclude that the CDS order of 2 October 2019 raises clear problems with judicial impartiality. He also concludes that the order offends the legislative intent for military judges’ discipline – having earlier concluded that Parliament’s legislative intent in creating the Military Judges Inquiry Committee was that it would be the sole an proper tool for disciplining military judges. Although both defence counsel and counsel for DMP argued that the impugned order is inextricably linked to jurisdiction, Commander Pelletier rejected this proposition. Instead, purporting to rely on Stillman, he held that “… [t]he role of defining the scope of military prosecutors’ jurisdiction belongs to the courts, while the role of deciding whether jurisdiction should be exercised in any particular case … is properly left to military prosecutors…”.
Ultimately, Commander Pelletier concluded that a stay of proceedings was not warranted. He had concluded that military judges are not subject to the Code of Service Discipline while they hold judicial office; there was therefore no risk of undermining their independence or impartiality.
The problem is that Commander Pelletier did not declare that any specific legislative provision or provisions were of no force or effect, nor did he read down any legislative provision. Indeed, he observed that the applicant did not ‘target’ any specific provision. Instead, Commander Pelletier preserved his jurisdiction to preside over MCpl Pett’s trial (and for any military judge to preside over any other trial under the Code of Service Discipline) by concluding that he, and all other military judges, are not subject to the Code of Service Discipline, contrary to Parliament’s clear intent at section 60 of the NDA that all officers of the Regular Force are subject to the Code of Service Discipline while serving as officers of the Regular Force.
One of the most noteworthy aspects of this judgment is that it can be characterized as an object example of how a judgment can be drafted in order to maintain jurisdiction. One reasonable position to take is that a judge or court will generally prefer to retain jurisdiction. Courts are loath to grant a stay of prosecution, as one of the chief results of such a decision is that the matter before the court will not be concluded based upon its merit. Second, by issuing a stay, a court would abdicate its role to ensure that the matter is concluded on its merits.
Commander Pelletier’s judgement presents an analysis that permits the military judiciary to maintain their jurisdiction – and to maintain the viability of the so-called military justice system – while also protecting those same military judges from the whim of executive decision-makers such as the CDS and DMP.
As I say – it is a ‘win’ for the military judiciary, but not so much for either the applicant or DMP.
Although the Applicant succeeded in demonstrating that both the CDS order and the standing of military judges as subjects of the Code of Service Discipline were inconsistent with the guarantees of independence and impartiality under section 11(d) of the Charter, this was not enough for MCpl Pett to avoid liability under the Code of Service Discipline.
While DMP may have been successful in opposing the applicant’s attempt to stay the prosecution, this application provided a platform for the military judiciary to send a clear message to DMP: Sorry Bruce, you don’t get to prosecute us.
This judgment may well be viewed as controversial by one or more segments of the military community, particularly within the Office of the JAG. One of the more interesting aspects of any controversy arises from any potential decision to appeal the judgment.
Even though aspects of Commander Pelletier’s judgment may not sit well with DMP – particularly the impact on the prosecution of Colonel Dutil – technically, DMP was successful at first instance. Commander Pelletier rejected the remedy sought by the applicant. The prosecution was not stayed. MCpl Pett was eventually convicted.
A narrow interpretation of s 230.1 of the NDA (the grounds by which the Minister might appeal a judgment of a court martial) would suggest that DMP would have few, if any, grounds for appeal. Certainly, MCpl Pett was eventually found guilty, and, even if DMP had grounds to appeal the eventual sentence, that would be distinct from the determinations that Commander Pelletier made regarding MCpl Pett’s application under s 11(d). Ostensibly, DMP could appeal the declaration concerning the CDS’ order. However, those grounds do not appear particularly compelling and that is not the portion of Commander Pelletier’s judgment that will potentially bedevil DMP’s application before the Federal Court.
Commander Pelletier did not declare any provisions of the NDA to be of no force or effect. Some commentators might view his conclusions regarding the immunity of military judges under the Code of Service Discipline, while they hold judicial office, to be obiter dicta. I do not. Those conclusions were central to his conclusion that military judges constitute an independent and impartial tribunal. Based upon this analysis, he concluded that he had jurisdiction to preside over MCpl Pett’s court martial.
Essentially, Commander Pelletier rendered a judgment that is problematic for DMP, without precipitating grounds for DMP to bring an appeal to address the aspects of the judgment that will likely be problematic for DMP.
Commander Pelletier’s judgment creates an anomaly insofar as there is no express declaration by the court at first instance regarding any provision under the NDA relating to the jurisdiction of the Code of Service Discipline over military judges. Without declaring any legislative provisions of no force or effect or reading down any legislated provisions, Commander Pelletier presented an outcome analogous to what would normally require such declarations.
While DMP does not appear to have grounds to bring an appeal on behalf of the Minister, MCpl Pett could appeal the judgment. It is my understanding that Defence Counsel Services has filed a Notice of Appeal on behalf of MCpl Pett. I note, tangentially, that, before Defence Counsel Services may proceed with an appeal on behalf of MCpl Pett, they must receive approval from the Appeal Committee established under s 249.211 of the NDA. If it is not approved, MCpl Pett could still bring an appeal, but he would have to pay his counsel’s fees himself.
What does this Mean for the Prosecution of Colonel Dutil?
As I mention above, there is a reasonable proposition that courts will generally be loath to surrender jurisdiction, particularly where to do so would result in a matter not being decided on its merits.
A caveat to that proposition arises when a court is presented with an awkward matter transferred or recycled from a separate jurisdiction. That, I suggest, would be a fair characterization of the application for judicial review brought by DMP and which is now before Justice Martineau.
If I may be permitted to express the issue in frank and colloquial terms, Justice Martineau faces the unpalatable proposition of telling a military judge how to perform his duties and functions. In my experience, Federal Court judges are typically reluctant to interfere with administrative decision-making in the CF save when presented with compelling grounds to do so. That approach was reinforced in the recent Supreme Court of Canada judgment in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. I suggest that a Federal Court judge may be even more reluctant to do so when the ‘administrative decision-maker’ is a military judge.
Commander Pelletier has presented a comprehensive judgment – albeit, one that does present debatable conclusions or propositions – that would permit Justice Martineau to conclude that this is a matter that is best left to military judges to determine their own jurisdiction. Justice Martineau could also conclude that, if DMP, or any other person with standing in such matters, has any objection to the eventual determination by a military judge, they would have recourse to the Court Martial Appeal Court of Canada.
I suspect that the potential implications of the judgment in R v MCpl Pett on DMP’s application before the Federal Court may well have been in Commander Pelletier’s contemplation when he drafted his judgment. As I say: the judgment in R v MCpl Pett was very much a nuanced message to various CF decision-makers, including DMP.
Thus, while I have identified what could be characterized as some problematic aspects in the judgment, it certainly offers Justice Martineau a straightforward means of resolving the application before him.
What are the Potential Implications for the Code of Service Discipline?
Read narrowly, the judgment in R v MCpl Pett concerns the lawfulness of the CDS’ order of 2 October 2019. However, there is significant discussion about how executive decision-making can influence the impartiality and independence of military tribunals. R v MCpl Pett dealt with the interpretation of s 11(d) of the Charter with regard to trials before a military judge without a military panel. Notwithstanding that counsel for DMP argued that military judicial independence (and impartiality) was a settled matter, Commander Pelletier clearly disagreed. Hence, he embarked on a detailed analysis of those issues in light of the current legislated regime.
However, his analysis was restricted to an examination of judicial independence and impartiality under s 11(d) of the Charter. It did not extend to military tribunals that are constituted by a military judge sitting with a military panel.
R v Stillman, 2019 SCC 40 focused on whether military panels were consistent with s 11(f) of the Charter. It expressly did not address whether military panels were vulnerable to adverse influence on their independence and impartiality contrary to section 11(d) of the Charter. As I mentioned in previous Blog articles here and here, the politicized atmosphere surrounding Op HONOUR, and the CDS’ strident approach to a zero tolerance policy, could have the effect of creating actual or institutional bias among military panel members. Arguably, such adverse impact might not be salvaged with a charge to the panel by a military judge that a finding pertaining to guilt must be made solely on the application of the evidence before the panel to the law as described by the military judge.
Unlike military judges, panel members do not benefit from the robust protections of their independence and impartiality described by Commander Pelletier in R v MCpl Pett. Panel members will likely be acutely aware that the CDS will be in a position to note if they were on a panel that acquitted an accused in a high-profile ‘Op HONOUR prosecution’. In my experience in dealing with decisions, acts, and omissions in the administration of the affairs of the Canadian Forces, CF decision-makers are far more concerned about how the CDS or other senior leaders view their decisions (particularly regarding high-profile subjects) than what an eventual reviewing court or judge might think.
I anticipate that Commander Pelletier’s examination of institutional bias, and its impact on independence, with by raised again in future applications pertaining to s 11(d) of the Charter.
 Parties include not only DMP and the Deputy Chief Military Judge, but also Colonel Dutil, in his capacity as the accused.
 R v MCpl Pett, 2020 CM 4002, para 10.
 Ibid, para 11. That said, it is dubious that the order was issued as a matter of routine. It did not solely reflect the creation of the DVCDS position, but also reflected a desire by senior CF leaders to ensure that disciplinary action could also be taken against military judges like Colonel Dutil.
 Ibid, para 49.
 Arguably, this saga has been proceeding since October 2015, when Colonel Bruce Wakeham, the COS JAG – a senior decision-maker in the Office of the JAG – first submitted a complaint to the Military Judges Inquiry Committee.
 There are provisions that permit the appointment of Reserve Force Military Judges, but that does not have an appreciable impact on the analysis.
 Commander Pelletier identifies Justice LeSage as the former Chief Justice of Ontario. This is incorrect. Justice LeSage was the Chief Justice of the Ontario Superior Court of Justice.
 You’ll note, Dear Reader, that I consistently refer to Commander Pelletier by his military rank. I do so to highlight this particular issue.
 R v MCpl Pett, para 32.
 R v Leblanc, 2011 CMAC 2.
 R v Trépanier, 2008 CMAC 3.
 See, for example, R v MCpl Edmunds, 2017 CM 3012 (CanLII)R v LCol Jonasson, 2019 CM 2002; R v LCol Jonasson, 2019 CM 2003; and R v Lt Banting, 2019 CM 2009. While I acknowledge that not all applications by defence counsel alleging ‘no prima facie case’ succeed, approximately 40% over the past 3 years have resulted in dismissal of one or more charges. Many pertain to allegations that could be characterized as falling under ‘Op HONOUR’. The principal point that I raise here is that a requirement for legal advice or review from a legal officer in the Office of the JAG is not a guarantee that the conclusion is correct. Such advice and review do not benefit from the transparent scrutiny offered before a public court.
 Arguably, and conceptually, based upon Commander Pelletier’s interpretation of the NDA, it could have been open to him to declare the CDS order of no force or effect because it was inconsistent with the legislated regime, and without relying on any analysis under s 11(d) of the Charter. However, based upon the concluding paragraphs of his judgment, he clearly relied upon s 11(d) of the Charter.