Eliminating Defence Counsel Services would be a bad idea …

 

A little bird told me that there have been discussions within the Canadian Forces (CF) or National Defence – perhaps within the Office of the Judge Advocate General (OJAG) – regarding the possibility of eliminating or modifying the role of Defence Counsel Services.

Now, granted, that’s simply a rumour.  And, notwithstanding that there are those – even among this nation’s journalists who report on matters of National Defence – who do a brisk trade in rumourmongering and making assertions based upon limited evidence, I must admit that I found this rumour to be disconcerting, for a number of reasons.

I have no ready means of confirming this rumour.  I did not hear of it from any serving member of the CF.  I suppose I could contact someone in the OJAG, but I doubt very much that anyone there would confirm or deny such a rumour.

That said, and regardless of whether the rumour is true (and just in case it is …), this might be a good time to examine why that would be a colossally bad idea.

I will commence the discussion by defining the nature of the rumour that I have heard – emphasizing that it is just that: a rumour.  However, I also observe that rumours often arise from actual discussions about such issues – although there can be a risk that the rumours reflect a distortion of such discussions.  It is helpful to set the stage regarding what may have prompted such discussions.  Even if the rumour is not entirely true, or if it reflects a distortion of discussions that have been held, there is merit in examining what may have prompted such discussions or given rise to such rumours.  This can then present a platform for discussing the merits of maintaining (or not) Defence Counsel Services.

As some of you may be aware, the position of Director of Defence Counsel Services (DDCS) is established in the National Defence Act (NDA) and the position has a limited form of independence relating to security of tenure.  DDCS is appointed to a term of not more than four years and holds office during good behaviour. DDCS can only be removed for cause and benefits from a process established under the NDA regarding such removal.  However, legislation can be amended.  And, as we will discuss below, a limited form of security of tenure for DDCS is not a guarantee that the mandate for Defence Counsel Services, legislated in regulations, will be maintained.  Nor does it guarantee that the position will be maintained.  It simply narrows the scope of those with the power to alter the mandate or position.

After discussing the legislative framework regarding DDCS and the directorate that he heads, I will turn to the key issue that I wish to discuss: that maintaining Defence Counsel Services in its current role (or in a comparable role) is vital, not only to justify maintaining a separate system of so-called “military justice”, but also in order to maintain access to justice for CF personnel.

 

Scope and Nature of the Rumour

Again, I must emphasize, this discussion is predicated upon a rumour that I have heard from a reliable source.  There is always the potential for the rumour to be based upon misinformation, misconstrued information, or misinterpretation.  Nevertheless, this rumour offers an opportunity for a meaningful discussion about the merits of Defence Counsel Services.

Here is the essence of what I have heard: Someone within the CF or the Department of National Defence (DND) – and possibly within the OJAG itself – has floated the idea that it might be appropriate to dispense with Defence Counsel Services or to reduce the scope of its mandate.  This discussion appears to have arisen from perceived inequities between CF personnel who are prosecuted before courts martial, and those who are prosecuted before civil courts of criminal jurisdiction.  Specifically, the former persons are represented by the stalwart advocates at Defence Counsel Services without incurring considerable personal expense.[1]  The latter are obliged to retain civilian counsel to represent them before civil courts.  Even for a relatively short trial of a day or two, this can often cost at least $25,000.00.  The cost of representation increases with complexity of the matter and the skill and experience of defence counsel.

Another part of the rumour that I have heard is that Defence Counsel Services may be replaced by some form of ‘legal aid’ regime for select personnel.  Unfortunately, as this is largely a rumour, the details of such a regime have not been articulated.  And, if these discussions are in their infancy, it is possible that such details have not yet been fully explored.  Presumably, the threshold for entitlement would be based upon rank or salary level such that more junior personnel or those paid at the lower end of the spectrum, would be entitled to some form of legal aid, while more senior, better paid personnel would not.  Alternatively, the amount of legal aid might be set on a sliding scale.

Such a regime is rife with potential problems.

 

Nature of Defence Counsel Services

For those who are curious, here is a link to the Government of Canada webpage that describes the mission and services offered by Defence Counsel Services.  This list of functions corresponds with the functions described in the Governor in Council regulation at art 101.11 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O).

You will note that their primary role is representing accused at court martial.  Subsequent to the bifurcation of the Code of Service Discipline, on 20 June 2022, into service offences tried by court martial and service infractions tried by summary hearings, that means that the military lawyers at Defence Counsel Services focus principally on service offences.

While the counsel at Defence Counsel Services may also provide advice to persons subject to the Code of Service Discipline who are arrested or detained, or who are questioned by persons in positions of authority, or in a number of other discrete circumstances, they do not generally represent persons tried by summary hearing for a service infraction.  One of the reasons for this is the sheer volume of such circumstances compared to a limited number of counsel at Defence Counsel Services.  At any given time, there are approximately six to eight regular force trial counsel at Defence Counsel Services, augmented by a similar number of reserve force defence counsel.

[And I note that the webpage for Defence Counsel Services still states that part of their mission includes “… Provision of legal advice with respect to the making of an election to be tried by court martial …”.  With the bifurcation of the Code of Service Discipline, that is not longer a factor.  However, that webpage has not been updated since 26 November 2019.]

I also note, tangentially, the disingenuous characterization that the new system of “Military Justice at the Unit Level” – or MJUL – comprised of summary hearings for service infractions, is purportedly akin to professional regulation in a manner similar to other professions, such as lawyers, doctors, nurses or even civilian police officers.  However, this process does not include a right to be represented by counsel, even by privately retained counsel.  Technically, the legislation for summary hearings (which is principally manifest in regulations rather than statute) is silent on representation by counsel.  It does not expressly bar privately retained counsel from appearing, nor does it expressly recognize the right to representation by counsel.  In fact, both the NDA and the relevant portions of the QR&O are silent on the right of appearance of privately retained counsel.

Art 121.02 of the QR&O does describe the role of what is typically described as an Assisting Officer (or Assisting Member) for a person charged with a service infraction.  However, an “Assisting Officer” is manifestly not the same thing as legal counsel (see para 2.2.6 of the MJUL policy manual).

The MJUL policy manual does address, briefly, the issue of legal counsel in Chapter 2 – specifically part 2.3 of the manual:

2.3.1 A person charged with a service infraction is not entitled to be represented by legal counsel appointed by the Director of Defence Counsel Services (DDCS), but they are entitled to legal advice of a general nature to assist on matters relating to summary hearings.

The officer conducting a summary hearing (OCSH) has the discretion to permit a person charged with a service infraction, upon request, to be represented by legal counsel at their own expense. After laying a charge for a service offence, the charge layer, in accordance with QR&O subpara 102.10(2)(c) (Notice of decision to lay charges), must confirm with the person charged whether they want to be represented by legal counsel who is either appointed by DDCS or retained at the person’s own expense.

 

Absent legislated direction, the CF’s relevant policy manual offers a very broad and general statement that an Officer Conducting a Summary Hearing (OCSH) may permit an “accused” appearing before a summary hearing to be represented by privately retained counsel.  It offers very little in the way of explanation regarding how this very broad discretion might be exercised.

I suggest that, when presented with such a request, the OCSH will likely seek legal advice from the unit legal advisor, and that decision-makers and advisors will likely fall back on ‘past practices’ under the previous summary justice regime.

Prior to the bifurcation of the Code of Service Discipline, Notes to the relevant QR&O provision (specifically the now-repealed art 108.14 “Assistance to Accused Person”) stated:

(B) An accused person does not have a right to be represented by legal counsel at a summary trial. However, if an accused person requests such representation, the officer having summary trial jurisdiction has the discretion to:

(i) permit representation by legal counsel;

(ii) proceed without representation by legal counsel;

(iii) apply for disposal of the charges against the accused person by a court martial.

(C) In the exercise of the discretion referred to in Note (B) of this article, the officer having summary trial jurisdiction should consider at least the following:

(i) the nature of the offence;

(ii) the complexity of the offence;

(iii) the interests of military justice;

(iv) the interests of the accused person; and

(v) the exigencies of the service.

An officer having summary trial jurisdiction who is considering the exercise of the discretion to permit representation by legal counsel should consult with a representative of the Judge Advocate General.

 

I am aware that, on rare occasions, officers presiding over summary trials – and now summary hearings – have permitted privately-retained counsel to appear.  However, those were rare circumstances.  In my experience, when my clients have asked for permission for me to be present during their summary trial, presiding officer’s, acting on the advice of a legal advisor from the OJAG, have categorically refused to do so.

Then again, on at least one such occasion, the presiding officer also refused, on the advice of counsel from the OJAG, to permit my client to elect trial by court martial, when my client was clearly entitled to such election …

I suggest that, in the absence of express legislative direction regarding the possibility of an “accused” (or, to use the language of the relevant regulations, “… the person accused of committing a service infraction …”) being represented by privately-retained counsel, the OCSH will invariably apply the same protocols that were applied to the previous summary trials: in other words, they will, by default, be inclined to refuse to let the “accused” have counsel present.

Moreover, in light of the cost of counsel for such matters, it will likely remain relatively rare that an accused will retain counsel to represent them at a summary hearing.  Nevertheless, I anticipate that such requests will typically be met with a negative response.

Ultimately, my point (tangential though it may be) is that, notwithstanding the disingenuous attempt to characterize the new MJUL as “professional regulation” it differs markedly from other forms of professional regulation, and even the enforcement of discipline for civilian law enforcement officers under legislation such as a Police Services Act.  I have raised this point before.

In the context of the present discussion, one of the key distinctions is that members of a profession, and civilian police officers, regulated by provincially enacted disciplinary codes and processes, not only have the right to representation by counsel before such disciplinary panels, but there is an expectation that they will be represented by counsel.  Many of those regulated persons even have access to funding for counsel, whether through a professional insurance regime or an association, including a collective bargaining unit (i.e., a union).  Yet, within the MJUL, under the Code of Service Discipline, there is an expectation that the so-called “regulated person” may not be permitted to have counsel present or to act for him or her before the disciplinary tribunal.  And, even if they are permitted to have counsel present, they will have to fund that legal support themselves.

As I say: equating the MJUL to “professional regulation” is a markedly disingenuous characterization.

But back to the rumour and the role of Defence Counsel Services …

Legislatively, the role of Defence Counsel Services is described in articles 101.10, 101.11, and 101.12, in Chapter 101 of the QR&O.  Article 101.10 reiterates the statutory provision at s 249.19 of the NDA:

The Director of Defence Counsel Services provides, and supervises and directs the provision of, legal services prescribed in regulations made by the Governor in Council to persons who are liable to be charged, dealt with and tried under the Code of Service Discipline.

 

Note that nothing in this provision stipulates that the legal services prescribed in regulation must be provided free of charge.

Article 101.11 of the QR&O is the principal provision outlining Defence Counsel Service’s “… legal services prescribed in regulations …”.  In the interests of space, I will not restate them here, but the provision is hyperlinked above.

This is a Governor in Council regulation.  That means that it can be amended by the Governor in Council.  Nothing bars the Governor in Council from amending the regulation to exclude “…   provision of legal counsel to an accused person in respect of a charge that has been referred to the Director of Military Prosecutions under subsection 161.1(1) of the National Defence Act …” (para 101.11(1)(i)) or a similar provision.  Nothing bars the Governor in Council from amending the regulation to require clients of Defence Counsel Services to pay a user fee.

The Director of Defence Counsel Services benefits from limited protection relating to security of tenure.  Under s 249.18 of the NDA, DDCS may only be removed from his position “… for cause on the recommendation of an inquiry committee established under regulations made by the Governor in Council.”  [I note, tangentially, that when the NDA was amended in 1998, a similar provision was enacted to protect the security of tenure of the Director of Military Prosecutions (DMP).  However, this protection for DDCS was only introduced by statutory amendment in 2013 with Bill C-15, the so-called Strengthening Military Justice in the Defence of Canada Act.]

This limited protection of security of tenure does not bar the Governor in Council from altering the role of Defence Counsel Services.  That role has already been altered by Bill C-77.  As Lando Calrissian learned when dealing with Darth Vader – pray they don’t alter it further.

 

What could have prompted this?

The likeliest publicly-acknowledged factors that prompted a re-examination of the role of Defence Counsel Services include the commentary offered by the Honourable Morris Fish in his Report of the Third Independent Review of the NDA and the perceived inequity in the costs of legal representation when CF personnel are prosecuted before civilian courts of criminal jurisdiction.

In terms of the commentary from the Honourable Morris Fish, I direct your attention, specifically (but not solely), to Chapter 1, paras 128 to 135, and paras 160 to 174, of his Report.

Regarding the perceived inequity in legal representation, it is noteworthy that service offences prosecuted under the Code of Service Discipline include Criminal Code offences (with a very few limited exceptions) and even the uniquely military offences are, essentially, analogous to criminal offences.  And, when a CF member (or anyone subject to the Code of Service Discipline) is prosecuted before a court martial, the accused can choose to be represented by a legal officer from Defence Counsel Services, thereby benefitting from legal representation ‘free of charge’.  Meanwhile, a CF member prosecuted before a civil court of criminal jurisdiction must pay out of pocket for such representation.  And, even where a matter is not complex and does not call for a lengthy trial, such persons can face legal bills of $25,000 or more.  And the cost increases significantly if the matter is complex, where Charter issues arise, or where the matter is high profile.

Thus, from what I can gather, a perception of inequity has arisen in light of the fact that many allegations of criminal offences of a sexual nature, arising within the context of the CF, have been referred to civil courts of criminal jurisdiction prosecuted by civil prosecutors and, in some cases, investigated by civil police.  This emerging issue is based upon direction from the previous Minister of National Defence (MND).  And, as I have observed previously, the scope of the MND’s authority to give such direction directly to the Canadian Forces Provost Marshal (CFPM) and the Director of Military Prosecutions (DMP) is dubious.  Such direction could, possibly, have been given to the Chief of the Defence Staff (CDS) and Judge Advocate General (JAG), respectively, and then communicated, in writing and publicly, to the CFPM (through the Vice Chief of the Defence Staff (VCDS)) and DMP.  Even then, such direction, fettering the supposed independence of the Military Police and military prosecutors, is questionable.

I suspect that the CFPM and DMP might be quick to assert that this decision, announced in an Orwellian joint statement by those two officers back in November 2021, was a product of their own exercise of discretion and not directed by the MND.  However, their ‘decision’, coming immediately on the heels of the direction by the MND, tends to identify rather clearly the true source of the actual decision and who the decision-maker actually was.

Now, to be clear, not all such matters have been referred to civil police for investigation and not all such matters are being prosecuted before civil courts of criminal jurisdiction.  As recently as this summer, the Military Police continue to investigate certain allegations of sexual assault.  And prosecutions for criminal offences of a sexual nature are still being scheduled for court martial. As of 6 September 2023, of the 19 court martial proceedings listed on the (Acting) Chief Military Judge webpage, five involve charges of sexual assault.  And, while some of those may be matters that were commenced before the MND’s direction in November 2021, not all were.

The blunt reality (which I have observed before) is that civil prosecutors and police do not report to the MND and are not obliged to comply with her direction.  They can decline to do her bidding (unlike the CFPM and DMP, notwithstanding their supposed independence).  And not only does this demonstrate the inconsistency of the assertion that “… criminal offences of a sexual nature will be referred to civil authorities …”, it creates a potential for inequity and abuse.  There is no way for the public – and potentially, even an accused – to know if civil police or prosecutors declined to proceed with allegations in the civilian criminal justice system for a valid reason – such as a lack of a reasonable prospect of conviction – only to have DMP prefer charges in the military justice system for reasons other than an objective evaluation of the evidence.  There is little or no transparency as to why some allegations of “criminal offences of a sexual nature” are still being investigated by Military Police or prosecuted before courts martial, while others are not.

However, if we put to one side the shortcomings of the problematic policy direction issued by the previous MND, and the lack of transparency and potential for abuse of process in the implementation of that policy direction, and focus on the supposed rationale for possible discussions concerning alteration of the mandate of Defence Counsel Services, we can identify further problematic considerations.

The rumour, as I understand it, is that there is an ongoing examination whether, and how, the mandate for Defence Counsel Services could be altered and that at least one of the factors prompting this examination is that some CF personnel benefit from defence counsel provided free of charge while others do not.  And the principal reason for this inequity is the policy decision by the previous MND, which fettered the discretion and role of the CFPM and DMP (and which, apparently, did not give rise to any objection by either of those officers).  And, if the rumour is true, it appears that one of the solutions, perhaps the principal solution, that has been posited is to deprive all CF members of the cost-free representation by Defence Counsel Services.

This logic is tantamount to “… if Billy and Mary cannot have an ice cream cone, then Sally and Jimmy cannot have one either …”

But here’s an idea: what if you hadn’t taken away Billy’s and Mary’s ice cream cones in the first place?  Or, alternatively, why not find a way to ensure that Bill and Mary can still have an ice cream cone?

Those of you who read this Blog regularly may have detected a slight degree of cynicism on my part.  No, no, no … it’s true.  I try to hide it, but every now and then, some subtle evidence may arise that is indicative of a smidgen of pessimism on my part.

But the nature of the rumour, cast in the light of policy decisions over the past 2 or 3 years, and the prevailing commentary from certain advocates and stakeholders, causes me to question whether there may be more to the motives behind the potential policy shift described in this rumour.  And, while my conclusions are, to an extent, speculative, they are founded on reliable observations and experience with decision-making in the administration of the affairs of the CF.

First, there has been a great deal of commentary regarding the supposed lower rates of conviction in the military justice system compared to the civilian criminal justice system, particularly regarding offences of a sexual nature.  Some of this criticism was prompted by an assertion by a previous JAG that conviction rates in the military justice system were comparable to those of the civilian criminal justice system.  That was a dubious claim.

In particular, Professor Elaine Craig, of the Schulich School of Law at Dalhousie University, authored a paper[2] providing data and analysis that supported the conclusion that, during the period that she examined, the military justice system had a roughly 28% conviction rate for sexual crimes compared to the civilian criminal justice system’s rate of 42-55%.  Professor Craig criticized the military justice system as being too lenient, citing circumstances in which Criminal Code offences (e.g., sexual assault contrary to s 271 of the Criminal Code) were substituted for unique Code of Service Discipline offences (e.g., Disgraceful Conduct contrary to s 93 of the NDA), which, objectively, can be viewed as less serious offences.  Professor Craig also criticized the sentences imposed by certain military judges.  She was particularly critical of Crown resolution agreements (plea bargaining), that resulted in guilty pleas to ‘lesser’ Code of Service Discipline offences instead of Criminal Code Offences, and sentences imposed following joint submissions under the auspices of R v Anthony-Cook, 2016 SCC 43.

Several stakeholders and commentators have then relied upon this criticism to argue, in effect, that the military justice system is “broken’, or not fit for purpose, or fails to support victims.  And, while I have certainly drawn conclusions regarding shortcomings not only in the military justice system (as it is not narrowly defined under the NDA to mean, essentially, the Code of Service Discipline), but in the administration of the affairs of the CF generally, I suggest that we must be cautious about leaping to conclusions.

And it starts with the suggestion that a lower conviction rate is indicative of a weak or failing system.  That is one potential conclusion to draw.  And the source of such weakness may vary.  Is it due to inefficient or ineffective investigation by the Military Police?  Certainly, there have been examples in the past of Military Police investigations that were not timely or efficient (or, conversely, which involved a rush to judgment and a lack of thorough investigation).  The Military Police have made mistakes in the past.  I have regularly offered criticism about the Military Police and the ineffective professional governance under the authority of the CFPM.  But that is only one possible reason for the lower rate of conviction.

There may also be valid grounds to contend that military prosecutors have been too quick to agree to Crown resolution and joint submissions on sentences that involved guilty pleas to lesser offences or what may be viewed as ‘light’ sentences.

The problem with many of these conclusions is that we do not know, with any degree of reliability, how strong or weak the prosecution’s case was.  We do not know how reluctant complainants or witnesses may have been to testify, even with the significant safeguards that are routinely implemented (e.g., testifying behind screens or remotely, publication bans, conducting the courts martial in locations other than the complainant’s ‘home’ unit).  We do not know, in all the relevant cases, if there were frailties with the evidence collected, including any potential Charter breaches.  Nor do we know whether prosecution before a civil court of criminal jurisdiction would have rendered any better outcome.  In particular, I note that, if such matters had been referred to civilian courts of criminal jurisdiction, any Crown resolution would have been limited to Criminal Code offences.  Rather than a guilty plea giving rise to a conviction for a Code of Service Discipline offence, the outcome may have been an acquittal.

In effect, there are many unknowns which we are not in a position to discuss or debate.

That said, one relevant factor that is routinely ignored by many commentators and stakeholders is that the reason for the lower rate of conviction may be caused, in part, by a tendency by military prosecutors to proceed with matters that do not have a reasonable prospect of conviction.  In other words, military prosecutors may be proceeding where the evidence is too weak to support a prosecution.  There have been examples of such problematic prosecutions is the recent past.

And, while I have been critical in the past of decisions of military prosecutors to proceed with charges despite the absence of a reasonable prospect of conviction, that does not mean that I do not understand their possible motivations.  When the news media and advocacy groups are consistently criticizing alleged “institutional failures”, there will be a tendency to over-correct, to prosecute markedly weak cases in order to demonstrate that “something is being done”.  Frankly, it may well be far more palatable for DMP to pursue a markedly weak prosecution with no reasonable prospect of conviction and lose, than to face the prospect of criticism by the news media (particularly where such criticism is prompted by a dissatisfied complainant who turns to the news media to vent their frustration) regarding a decision to withdraw a prosecution.

The problem with such an approach, however, is that it fails to maintain the ethical standards of a “minister of justice”.  I recognize that, when a prosecution is withdrawn, it can have a significant impact on the complainant and upon other stakeholders in the military justice or criminal justice systems.  It can undermine confidence in those systems.  It can have a chilling effect on reporting of misconduct.

However, when a prosecution is pursued, and there is a marked lack of merit to the prosecution, it can have a significant impact on the subject of the prosecution.  Where an accused is found guilty (or, where the accused is vilified in the national news media), there will likely be limited public sympathy for the accused.  However, where an accused is acquitted – or even exonerated – at trial, people will start to question whether a prosecution was prompted more by political considerations than by the actual objective merits of the case.  And such an outcome can also have an adverse impact on the public’s confidence in the military justice or criminal justice process.

I suggest that this was largely how the public viewed the botched prosecution of Vice-Admiral Norman (retired) and it is likely how many Canadians view the recent acquittal of Major-General Dany Fortin.  Both of these officers were prosecuted before civil courts of criminal jurisdiction, but where military investigators and decision-makers were involved.

But those are the high-profile cases.  There is not the same attention brought to bear when a Corporal, Warrant Officer, Captain, or Lieutenant-Colonel is prosecuted on specious grounds.  Notwithstanding that the officer or non-commissioned member may be acquitted (or the charges withdrawn) that does not mean that their life is not thrown into turmoil during (or after) the prosecution is concluded.  Nor is it a safeguard against disingenuous administrative action taken before, or after, an acquittal or the withdrawal of charges.  The principal difference is that the public will not be as acutely aware of that matter.  There will be far less scrutiny of some of the questionable decision-making by CF statutory decision-makers.

Now add to that turmoil, the additional costs of a criminal defence.  Not every CF member prosecuted before a civil court of criminal jurisdiction will benefit from a GoFundMe campaign initiated by a retired artillery officer.  Not every CF member will be able to seek a settlement with the Crown (under the veil of a Non-Disclosure Agreement) due to the public and media pressure after a failed prosecution.  Many junior personnel will bear the not-inconsiderable costs of their defence.

Again, it would be difficult to conduct definitive research into factors that prompt military prosecutors (or even civilian prosecutors) to pursue prosecutions even where the ‘prospect of conviction’ is dubious.  Ideally, one would need to have relatively unfettered access to the relevant Military Police (or civilian police) reports in order to evaluate the strength of the cases.  However, there have nevertheless been cases that are indicative of prosecutions that should never have been brought.  I have discussed these before.

I have suggested before that the lower rate of conviction in the military justice system may also be indicative of the impact of greater access to justice.  And that may very well be one of the motivations for getting rid of Defence Counsel Services or for reducing its mandate.

Capacity to afford robust defence is a significant factor for access to justice.  The Chief Justice of Canada is a “… steadfast advocate for better access to justice for all Canadians …” and has repeatedly championed this important factor, calling access to justice a “social imperative”.  And the Chief Justice remains “enormously preoccupied” by access to justice concerns.

This is one of the reasons why the rumour regarding Defence Counsel Services has caused me such concern.  It is possible that it is driven principally by perceived inequity.  However, my inner cynic questions whether it may also be a disingenuous initiative to alter the rate of convictions in the military justice system and to reduce the robustness of defence.

A common complaint by military prosecutors relates to the number of Charter challenges brought by Defence Counsel Services.  While some Charter challenges may turn on facts relevant to a specific case, many of these applications relate, generally, to the framework of the administration of justice within the Code of Service Discipline.  The issue of the independence of the military judiciary, which will be heard by the Supreme Court of Canada (SCC) on 16 October 2023, is one such example (Leading Seaman C.D. Edwards, et al. v His Majesty the King, SCC Docket 39820).

Throughout 2020, counsel from Defence Counsel Services repeatedly brought applications challenging the jurisdiction of the court based upon the independence of the military judiciary.  The arguments varied between counsel, but at its core, the argument focused on the fact that military judges were, themselves, subject to the Code of Service Discipline, and could thereby be intimidated or influenced by the chain of command.  Counsel argued that the threat of adverse action by the chain of command undermined the institutional independence of the military judiciary.

As I discussed over the course of a series of Blogs, defence counsel were gradually successful with this argument:

Disciplining Military Judges, 20 February 2020

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

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

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

Judgments as ‘Remedial Measures’, 2 October 2020

R v MacPherson et. al.: Judicial Independence Redux, 27 October 2020

R v Christmas – Beware the Ghosts of Judgments Past, 13 November 2020

 

Eventually, it was brought before the Court Martial Appeal Court of Canada (CMAC) – R v Edwards; R v Crépeau; R v Fontaine; R v Iredale, 2021 CMAC 2 and R v Proulx; R v Cloutier, 2021 CMAC 3 – which held that the application of the Code of Service Discipline to military judges did not undermine their independence.  Leave to appeal to the SCC was sought and granted.

The issue of the independence of the military judiciary has been a past topic for this Blog and will be again in the near future.  However, putting aside the merits of the appeal to be heard in October, the key point is that these applications and appeals did not represent Charter challenges based upon discrete facts arising in an individual case; these applications turned on institutional aspects and processes of the Code of Service Discipline.  And the same was true of the appeal in Beaudry v R, 2018 CMAC 4, which disrupted the functioning of the Code of Service Discipline in late 2018 and into 2019.  This judgment was later overturned in R v Stillman, 2019 SCC 40, but not before there was some disruption to the Code of Service Discipline.

And, frankly, there were many within the Canadian Military Prosecution Service, the OJAG, and the CF generally, who grumbled (and continue to grumble) about these repeated Charter applications and appeals.  They complain that these challenges are not brought on merit but simply constitute chicanery by Defence Counsel Services.  There were those who believed that, were it not for the fact that representation by Defence Counsel Services was “free of charge”, many of these applications and appeals may never have arisen.  And, while such assertions were, in part, speculative, there is likely some merit to the suggestion that the access to defence counsel “free of charge” – i.e., greater access to justice – invites more robust defence.

But was that necessarily a bad thing?

Is it a ‘bad thing’ to have a robust mechanism that helps ensure that a process is Charter-compliant by regularly testing the received wisdom of legislators and policy makers?  Is it a ‘bad thing’ to test, regularly, the fairness of a given process?

Some people might complain that the provision of defence counsel “free of charge” gives rise to a “Cadillac” defence.  And perhaps it does.  But shouldn’t we expect that when the Canadian Military Prosecution Service is in a position to offer “Cadillac” prosecutions?  I have observed before (A bit of Code of Service Discipline Data …, 7 February 2022) that, based upon DMP’s own annual reports, the Canadian Military Prosecution Service has over two dozen legal officers in their ranks.  They handle anywhere between 40 to 70 prosecutions per year.

And, even if we assume that the legal officers in ‘supervisory’ roles do not play a direct role in prosecuting matters, the average case load for military prosecutors cannot be much more than 5 or 6 matters per year.  And all of those matters do not result in trials on the facts.  Many are resolved by guilty plea.  There is certainly a fair bit of work that must be done, even if a matter is resolved by guilty plea.  However, I suggest that these prosecutors do not carry a comparable number of matters as their civilian counterparts in the offices of provincial Crown Attorneys.  And they certainly outnumber the legal officers at Defence Counsel Services.

My point is this: if the institution is going to set conditions for “Cadillac” prosecutions, then, in the interests of fairness and access to justice, there had better be similarly robust options for Defence Counsel Services.

If someone gauges the success of a justice system by the percentage of successful prosecutions, an imbalance between prosecution and defence may be satisfactory.  However, for someone who measures the merit of a justice system by indicia of fairness and the qualitative merit of checks and balances for the exercise of statutory powers within the asymmetric Crown-soldier relationship, perhaps there is some reassurance that all prosecutions are not forgone conclusions.  After all, mistakes can be made.

Remember: access to justice is a social imperative.

 

A Hypothetical Example to put things in perspective …

Before we jettison Defence Counsel Services in our haste to (supposedly) ‘level the playing field’, I would ask you to consider the following ‘hypothetical example’.

Let’s take a relatively junior member of the CF – a Corporal Smith or a Lieutenant Tremblay – who has been accused of a low-level sexual assault.  And, before anyone takes umbrage with my choice of terminology, when I say a “low level” sexual assault I am referring to allegations on the lower end of the fairly broad spectrum of that offence.  Sexual assault, as it is defined under s 271 of the Criminal Code can range in nature from a brief touching of a part of a person’s body, over clothing, to more violent penetrative sexual intercourse.  The offence captures a broad range of misconduct.

Lieutenant Tremblay is alleged to have “… touched for a sexual purpose …” another member of the CF on a Defence Establishment.  The allegations against Lieutenant Tremblay are investigated by the Military Police but a charge is laid in the civilian criminal justice system.  Consequently, Lieutenant Tremblay is obliged to seek privately retained defence counsel.

Let’s assume that Lieutenant Tremblay is paid at the rate of pay established by the Treasury Board under s 35 of the NDA, in Compensation and Benefits Instruction (CBI) Chapter 204, for “Lieutenant-Basic” and that Lieutenant Tremblay joined the CF as an Officer Cadet (OCdt) under the Regular Officer Training Plan (ROTP) with no prior military service.  Thus, Lieutenant Tremblay’s rate of pay will be $6094.00 per month, or $73,128.00 per annum, prior to deductions.  That rate of pay would far exceed the threshold for entitlement to funding from Legal Aid in Ontario (and I suspect, all other provinces).

Frankly, even an OCdt paid at the Basic level of pay (with no annual increments) would be paid $2521.00 per month, or $30,252 per annum prior to deductions; this would also exceed the Legal Aid threshold in Ontario by over $7500.00.  Lieutenant Tremblay will not be entitled to counsel paid by Legal Aid and will have to pay “out of pocket” for privately retained counsel.

So, Lieutenant Tremblay will have to retain counsel.  Some counsel may require a fairly hefty retainer of $10,000, $15,000, or even $25,000 to agree to be Lieutenant Tremblay’s “counsel of record”.  Some may take a phased retainer, depending upon the stage of the process (e.g., receipt of disclosure, initial analysis of the matter, resolution meetings with the Crown) and may require a more robust retainer if the matter will be scheduled for a trial.

Let’s assume that Lieutenant Tremblay retains counsel to assist with pre-trial process with a retainer of $15,000, and the counsel informs Lieutenant Tremblay that, if it is necessary to set the matter for trial, a further retainer of $25,000 will be required.  This is a not-uncommon circumstance.

Lieutenant Tremblay maintains his innocence.  He asserts that he touched the complainant in a non-sexual manner and with the complainant’s consent.  However, Lieutenant Tremblay is also aware that it is ultimately his word against the complainant, and he is concerned that “… everyone believes the complainant …” these days.  He would not be alone in that belief.

Now let’s add a twist: as a result of the defence counsel’s initial analysis of the disclosure and resolution meeting with a prosecutor from the office of the relevant Crown Attorney, the latter offers to resolve the prosecution with a joint submission for a conditional discharge if Lieutenant Tremblay pleads guilty to the charge of sexual assault.  This is what some people will refer to as ‘plea bargaining’.

Initially, this offer would be very attractive to an accused.  In fact, such an offer would be particularly rare where sexual assault is alleged.  It is indicative of an offence that lies at the very low end of the range of misconduct described by sexual assault and is likely indicative of the Crown Attorney’s assessment of the merit of the evidence against Lieutenant Tremblay.  Where the available evidence is compelling, the Crown is unlikely to offer what could be characterized as a very attractive Crown resolution plea.  In other words, such an offer is indicative of a conclusion by the prosecutor that the allegations are at the very low end of the spectrum and/or the evidence is not compelling.

This offer would likely appeal to Lieutenant Tremblay, at least initially.  It has a certainty of outcome and will ensure that Lieutenant Tremblay will not receive a criminal record.  However, it would also require Lieutenant Tremblay to admit to something that Lieutenant Tremblay insists he did not do.

However, the risk of a conviction is not the only factor or stressor – or even the principal factor – that may influence Lieutenant Tremblay’s decision-making.  If Lieutenant Tremblay wishes to defend himself and contest the charge, he will have to deposit an additional $25,000.00 on retainer with his counsel to proceed to trial.  And Lieutenant Tremblay does not have $25,000.  He likely had a fair bit of difficulty coming up with the initial $15,000 retainer.

There is an additional factor that will affect Lieutenant Tremblay – potential administrative action by the CF.  If he pleads guilty, even in return for a conditional discharge that will avoid a criminal record, there is a high probability (frankly, certainty) that the CF will initiate an Administrative Review under Defence Administrative Order and Directive (DAOD) 5019-2.  In fact, if prior Administrative Reviews are any indication, this process will likely conclude with a recommendation for a release under item 2(a) of the Table to art 15.01 of the QR&O, even though such a recommendation requires a conviction for a serious criminal offences.  [NB: A conditional discharge is not a sentence, and, therefore, does not result in a conviction.  It represents a discharge of a finding of guilt.]

However, even putting aside the repeated tendency of staff at DMCA 2 to err in the administration of Administrative Reviews, it is likely that DMCA would order release under item 5(f).  And DMCA would rely on the admission of guilt to sexual assault, notwithstanding that it did not result in a conviction.

The scenario that I have described reflects circumstances that could readily arise in the current context of referral of military criminal/disciplinary matters to civil courts of criminal jurisdiction.  Some factors may vary; however, a consistent factor is that the high cost of a criminal defence is a key factor for the accused when considering offers of Crown resolution.  And, notwithstanding the attractive nature of what Lieutenant Tremblay was offered, the consequences of such a plea are significant.  And an over-arching factor is Lieutenant Tremblay’s capacity (or lack thereof) to pay for an adequate criminal defence.

And, as I mention above, I doubt very much that some well-meaning retired artillery officer would initiate a GoFundMe campaign for Lieutenant Tremblay.

 

Abolishing or Limiting Defence Counsel Services is a “Bad Idea”

So, to recap, I have heard rumours that decision-makers in the OJAG or the CF (or National Defence more broadly) are contemplating either eliminating Defence Counsel Services or reducing the scope of the Defence Counsel Services mandate for persons charged and prosecuted under the Code of Service Discipline.

I do not have reliable information regarding the manner in which the mandate may be reduced.  And, frankly, those involved may not yet have identified a specific preferred course of action (CoA).  Such imprecision is consistent with initial discussions or examination of a potential policy change.  It could vary from eliminating Defence Counsel Services entirely and requiring CF personnel to retain and instruct private (civilian) counsel for courts martial (as is presently done for prosecutions before civil courts of criminal jurisdiction) to the implementation of a “fee for service” or “user pay” regime, or possibly even a reduced role for Defence Counsel Services.

One alternative is that Defence Counsel Services would be altered in a manner suggested in Recommendation #12 of the Report of the Third Independent Review of the NDA by the Honourable Morris Fish.  There was some suggestion that the military legal officers assigned to Defence Counsel Services could be adversely affected, in terms of career advancement or perception within their professional ranks, by a role that places them in an adversarial position to the CF chain of command and, by extension, the rest of the OJAG.  Consequently, one potential change would be to staff Defence Counsel Services with civilian lawyers (although, once might anticipate that these ‘civilian lawyers’ will predominantly be retired legal officers seeking a second career).

However, such a construct would still give rise to the inequity that was purportedly a factor that precipitated the rumoured discussion.  Those CF personnel tried by Court Martial would still benefit from a service for which other CF personnel must pay out of pocket if they are prosecuted before civil courts of criminal jurisdiction.

Therefore, one alternative to eliminating Defence Counsel Services in its entirety would be to institute a type of “user pay” system.  An accused may rely on Defence Counsel Services if the accused pays a set fee, not to the lawyer, but to the Crown.  Such a process is rife with potential ethical issues.  Moreover, would the fee be the same for everyone, or would it vary by rank or salary – you, know, in order to be ‘equitable’?  The problem with such supposed ‘equitable’ models is that a CF member’s salary is not the sole relevant factor.  An unmarried corporal who “lives in the shacks” (i.e., who lives in military quarters) likely has considerably more disposable income than a married captain with two children and a spouse who does not have a separate source of income, notwithstanding that most captains are paid more, per annum, than most corporals?

One of the rumours I have heard is that decision-makers are contemplating a form of graduated “legal aid”.  As I mention above, even the most junior members of the regular force component of the CF are paid salaries far in excess of the threshold for legal aid in most, if not all, provinces.  And a ‘legal aid’ regime under the Code of Service Discipline would have to have a higher threshold if it is to be meaningful.  And even then, salary and rank are not the determinative factors for a CF member’s capacity to afford counsel.

And there are potential challenges for reserve force personnel.  For some, on full time service, their CF service will be their principal or sole source of income.  For others, who serve predominantly on part-time service, their civilian ‘day job’ may vary considerably.  Any ‘legal aid’ regime would have to address such variables.

Ultimately, one of the biggest conceptual problems faced by any change to the role of Defence Counsel Services is that the provision of free defence counsel ought to be viewed as one of the costs arising from the maintenance of a separate system of military justice.  And, in light of how stridently the OJAG has fought against suggestions of limiting the application of the Code of Service Discipline (notwithstanding the MND’s policy direction in November 2021, which did just that), I would be very surprised if the new JAG would advocate for reducing the Code of Service Discipline to circumstances of armed conflict or while on operations.

It is true that the policy decision by the previous MND has given rise to inequities.  That is what happens when politicians make knee-jerk policy decisions without fully assessing the consequences of such decisions, particularly when the decision impacts or involves other statutory actors who are not responsible to the politician who made the decision.  An increasing number of CF members are being prosecuted before civil courts without the same access to justice provided to their colleagues prosecuted before courts martial.  This does lead to inequity.

It also leads to arbitrary administration of justice.  Contrary to the message emanating from National Defence, not all allegations of offences of a sexual nature are being investigated by civilian police.  The Military Police are still regularly investigating such allegations.  And I suspect that the reason for this is because some civilian police forces are still declining to investigate matters that they contend fall within military justice.  And I suspect that one of the reasons for these decisions is that potential witnesses, including the complainant and the accused, are often spread across the country.  However, there is not much transparency regarding this issue.

Similarly, not all charges of sexual assault or other “criminal offences of a sexual nature” are being prosecuted before civil courts of criminal jurisdiction.  Some are still being prosecuted at court martial.  However, there is little or no transparency regarding why those particular matters are being prosecuted at court martial.  Some of the matters may be matters that were initiated under the Code of Service Discipline prior to November 2021 and, consequently, they were retained within the military justice system.  But that does not explain all of the matters currently before courts martial.  What we do not know is whether some of those matters were first referred to the civilian criminal justice system, but civilian prosecutors declined to proceed.  Such circumstances have arisen in the past.  Indeed, I am aware of matters that were referred to civilian prosecutors – more than once – and the civilian prosecutors declined to prosecute.  Consequently, military prosecutors with the Canadian Military Prosecution Service pursued prosecution before court martial.  At least one of those prosecutions was unsuccessful.  And I suggest that such selective prosecution raises the issue of whether such arbitrary exercise of discretion amounts to an abuse of process.

Ultimately, there is a degree of inequity when some CF members must pay for defence counsel and others do not.  The source of that inequity is a policy decision of questionable merit.  However, even before that decision was made in November 2021, there was still a basis for inequity.  As I have explained previously, one factor that can affect whether allegations are prosecuted in the military justice system, or the civilian criminal justice system, is the decision by the complainant.  If the complainant reports alleged criminal misconduct by a CF member to civilian police, that could precipitate prosecution before civil courts by civil prosecutors.  That inequity may be the cost of maintaining a separate system of military justice.

However, the solution to such inequity need not result in a further limitation of access to justice.  One solution could be to ensure that the CF provide for ‘legal aid” even if the matter is referred “downtown”.  In other words, rather than taking the ice cream away from Sally and Jimmy in order to ensure that they are on equitable footing with Billy and Mary, perhaps the focus should be on devising a means to ensure that Billy and Mary are not deprived of their ice cream.

Finally, I contend that it would truly be despicable if the rumoured re-evaluation of Defence Counsel Services had been prompted, even in part, by resentment of the robust efforts by Defence Counsel Services and a perception that such rigorous defence unreasonably frustrates the outcomes desired by DMP, the CF chain of command, or other stakeholders.  If this was prompted because people resent the fact that CF personnel accused of wrong-doing, and prosecuted under the Code of Service Discipline, benefit from robust access to justice, then I suggest that this represents an unreasonably skewed understanding of the principles that underly any system of justice.

 

[1] As an aside, a person subject to the Code of Service Discipline, and prosecuted for a service offence before a court martial, can choose to be represented by privately retained civilian counsel at their own expense.  Such a decision is often difficult to comprehend when the accused can benefit from representation by a military lawyer from Defence Counsel Services.  These defence counsel are very capable and dedicated and have robust experience with the Code of Service Discipline and the nature and process of courts martial.  They also do so at no cost to the accused.  I have encountered CF personnel who, even when this option was available to them, have contacted me and insisted that they wanted to be represented by civilian counsel.  The reasons vary but include misconceptions such as: (a) they aren’t independent; (b) the CF member “… heard from others …” that the lawyers at Defence Counsel Services aren’t very good; or, (c) some were even unaware that they could be represented by Defence Counsel Services, even though their chain of command is obliged to inform them of this option.  I can assure you, Dear Reader, that the military lawyers at Defence Counsel Services are capable, dedicated, and perform yeoman service.  And this service will not cost the accused $25,000, $50,000, $75,000, or more, which is what it would cost to be represented by civilian counsel.

[2] Elaine Craig, “An Examination of How the Canadian Military’s Legal System Responds to

Sexual Assault” (2020) 43:1 Dalhousie LJ 63.