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

 

Military judges are sending a message.

But the Chief of the Defence Staff is not listening.

And the Judge Advocate General (JAG) does not appear to be amplifying the message.

 

Dialogue

Constitutional legal scholars, including Canadian scholars such as the late Peter Hogg, have elaborated on the concept described as ‘constitutional dialogue’ or the ‘dialogue principle’.  This principle refers to a basis of interpreting Constitutional law and principles – particularly relating to entrenched rights like those found in the Canadian Charter of Rights and Freedoms (Charter) – as part of a dialogue between the legislatures (whether Parliament or a provincial legislature) and the courts, particularly the Supreme Court of Canada.

The theory is not without controversy.  Some scholars view the principle as an apt description of the dynamic between legislatures and the courts.  Others view it as a disingenuous rationalization for what they view as increased ‘judicial activism’.

Nevertheless, there are instances where legislatures have responded to appellate judgments by amending legislation, and other examples, where legislatures have done so, but appellate courts have still overturned the amended legislation: e.g. Sauvé v Canada (Chief Electoral Officer), [2002] 3 SCR 519 and Sauvé v Canada (Attorney General), [1993] 2 SCR 438.

Certainly, in the scope of military law in Canada, particularly within the rubrique of the Code of Service Discipline (which successive Judge Advocates General have referred to as ‘military justice’), there has been what could be described as a dialogue between appellate courts, including the Supreme Court of Canada (SCC), and Parliament.  Following the judgment of the SCC in R v Généreux, [1992] 1 SCR 259, Parliament amended the National Defence Act (NDA) to correct deficiencies in the Code of Service Discipline – specifically, the process for convening courts martial – identified by the majority judgment in that case.  Généreux also provided the oft-cited passage from the then Chief Justice of Canada, building upon the pre-Charter case of MacKay and The Queen, [1978] 1 FC 233, (1978) 78 DLR (3d) 655 (FC TD), regarding the purpose of military tribunals:

The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military.  The safety and well-being of Canadians depends considerably on the willingness and readiness of a force of men and women to defend against threats to the nation’s security.  To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently.  Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct.  As a result, the military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs.  In addition, special service tribunals, rather than the ordinary courts, have been given jurisdiction to punish breaches of the Code of Service Discipline.  Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military.  There is thus a need for separate tribunals to enforce special disciplinary standards in the military.

This dialogue – the process of an appellate court handing down a judgement illustrating a constitutional deficiency in the Code of Service Discipline, and Parliament responding with amendments to correct the deficiency – has been repeated with matters such as R v Trepanier, [2008] CMAC 3 (where leave to appeal to the SCC was refused).  In other cases, such as R v Moriarity, [2015] 3 SCR 485 and R v Stillman, 2019 SCC 40 (which reversed the judgment of the CMAC in Beaudry v R, 2018 CMAC 4), the judgment of the SCC eventually upheld the challenged legislation.  Thus, no amendment was necessary or pursued.

I have commented previously that many significant reforms of the Code of Service Discipline – at least to the extent that the reforms safeguard the rights of Canadian Forces (CF) personnel – have generally arisen from appellate courts striking down problematic provisions in the legislation.  While some problematic aspects of the Code of Service Discipline have been addressed by virtue of policy initiatives, I suggest that reform arising from such prompting has been inconsistent.  While some recommendations from the ‘Independent Reviews’ by the late Chief Justice Antonio Lamer and Justice Patrick LeSage have been pursued, others remain unaddressed.  It would not be unreasonable to suggest that much reform has arisen from either constitutional challenges or the fear/threat of such challenges.  Reform has also been largely piece-meal.

On the contrary, as I explained in my comments on Bill C-77, reform of the Code of Service Discipline based upon policy initiatives (often led by the Office of the JAG) will tend to diminish the rights of accused.

That said, the ‘dialogue’ that we have been witnessing in the Code of Service Discipline during the first 7 ½ months of 2020 has largely been between the Chief of the Defence Staff and the military judiciary, rather than between appellate courts and Parliament.  And it is clear that the CDS is not listening.

Frankly, it is not surprising that the CDS is not listening to the military bench.  I have suggested, for some time now, that the CDS is not particularly attuned to the Rule of Law.  What is of greater concern to me is that the legal advisors of the Office of the JAG (OJAG), and the JAG herself (as the statutory legal advisor to the Governor General, Minister, CF, and Department – and the person who commands the OJAG), do not appear to be impressing upon the CDS and the senior leadership of the CF the importance, not just of complying with the Rule of Law, but of demonstrating respect for the Rule of Law.  As statutory actors, the CDS and the senior leadership of the CF have an obligation to uphold such principles.

This highlights one of the more ironic aspects of policy initiatives like Op HONOUR.  When adverse administrative action has been taken against members of the CF for alleged sexual misconduct – and administrative sanctions and punishment regarding Op HONOUR have been far more frequent than disciplinary action under the Code of Service Discipline – decision-makers like Colonel Genevieve Lehoux, Director Military Careers Administration (DMCA), repeatedly cite various Defence Administrative Orders and Directives (DAOD) – typically mischaracterizing those directives as ‘regulations’ – and admonishing the respondent CF members for failing to follow those directives.  In other words, members of the CF are punished, often using administrative regimes rather than disciplinary regimes, for not following the rules.

Yet, as I have observed previously, in so doing, there have been instances in which decision-makers like Colonel Lehoux do not, themselves, follow the rules.  Indeed, they often disregard well-established principles of law, not just policy directives.  As I have suggested in the past, they do so with a degree of impunity knowing that CF members can only contest those decisions before a constitutionally independent court only once they have exhausted the CF’s statutory grievance process (which is controlled and presided over by the same CF decision-makers who have demonstrated a less than consistent respect for the Rule of Law).  And that grievance process typically takes several years to run its course.

 

The CDS Order and Judicial Independence

Over the past seven months various military judges have held that the CDS’ order, placing military judges under the disciplinary authority of the Deputy Vice Chief of the Defence Staff, contravened the right of any CF member, charged under the Code of Service Discipline, and who elected trial by court martial, to trial before an independent and impartial tribunal, as established under section 11(d) of the Charter.

Military Judge Commander Pelletier delivered this judgment in R v Pett, 2020 CM 4002 in January of this year, followed by Military Judge Commander Sukstorf, who delivered a similar judgment in R v D’Amico, 2020 CM 2002 in March.  In both of those cases, the accused was seeking a stay of prosecution because of this infringement.  As I explained in previous Blog articles, here and here, the military judges in both cases found a fairly expedient way to address the Charter issue, without having to terminate the prosecution: they simply held that the order had no force or effect.  The prosecution was able to proceed, so the Director of Military Prosecutions (DMP) had no basis to appeal the judgments; however, the military judges were able to register their displeasure with the CDS’ order.

The problem, as I explained in a recent Blog article, is that courts martial are statutory courts, not ‘section 96 courts’ (referring to section 96 of the Constitution Act, 1867).  While a military judge can find the impugned order to be of no force or effect in the proceeding before him or her, the judgment does not quash the order or render it of no force or effect in future proceedings.  Consequently, this leaves it open for defence counsel to raise the same Charter challenge in every subsequent matter, knowing that it is likely that the military judge will find a Charter infringement.

Presumably, the CDS didn’t particularly care that military judges considered his order to be a breach of the Charter, because it was not impeding prosecutions at court martial.  Not that the CDS appears all that concerned about courts martial anyway – based upon what has transpired over the past several years, it would be a reasonable inference to conclude that his preferred means of punishing CF personnel is through administrative measures , which are not subject (at least, not immediately) to the ‘annoying’ impact of judicial scrutiny.

 

R v Bourque, 2020 CM 2008

Which brings us to R v Bourque, 2020 CM 2008.  After 6 months and multiple judgments, which all found that the impugned CDS order contravened a CF member’s Charter right to a trial before an independent and impartial tribunal, Military Judge Commander Sukstorf issued an ultimatum: she gave the CDS until 1330 hours the following Monday to rescind the order, otherwise, the accused’s Charter application would proceed.

The CDS did not rescind the order.

The Charter application did not proceed.  Instead, the accused pleaded guilty on a joint submission for a $200 fine.  I previously invited readers of this Blog to draw their own conclusions about the implications of that outcome.  In light of the judgments last Friday in the courts martial of Leading Seaman Edwards and Captain Crépeau, the time has come for me to spell out explicitly the conclusion that I draw from that outcome.

A $200 fine represents a noteworthy threshold for a punishment under the Code of Service Discipline.  A fine is not a ‘minor punishment’ as defined under section 146 of the NDA.  Notwithstanding that the ‘minor punishment’ of ‘confinement to barracks or ship’ under QR&O article 104.13(1)(a) represents a very real deprivation of liberty (which would presumably attract scrutiny under section 7 of the Charter), ‘minor punishments’ are generally regarded as lesser than the punishments expressly established under sections 140 to 145 of the NDA.  That’s why they are called ‘minor punishments’.  As described at Note B to QR&O 104.13, the purpose of ‘minor punishments’ is to “… correct the conduct of service members who have committed service offence of a minor nature while allowing those members to remain productive members of the unit.”

A fine is the lowest punishment on the ‘scale of punishments’ (section 139 of the NDA) other than ‘minor punishments’.  And a fine of $200 or less can be distinguished from more severe punishment based upon its impact on the resulting entry on the CF member’s Conduct Sheet, governed by DAOD 7006-1.

Paras 4.1 and 4.2 of DAOD 7006-1 state:

4.1 An entry shall be removed from a member’s conduct sheet when:

a.  a pardon of the offence to which the entry relates is granted under the Criminal Records Act (see DAOD 7016-0);

b. a review or appeal quashes a finding of guilty; or

c.  the CDS determines that the entry resulting from a conviction by a foreign court or tribunal is no longer required. A member’s application for such a determination must be supported by the member’s CO. Normally, this will not be considered before completion of a period of 72 months during which the member has:

i.  been of good conduct; and

ii.  not been convicted of an offence other than one for which a pardon has been granted.

 

4.2 An entry relating to a conviction which has resulted in a fine of $200 or less, or a minor punishment, for example, seven days confinement to barracks, shall be removed from a member’s conduct sheet:

a.  upon completion of the later of:

i.  six months service from the date of enrolment or re-enrolment; or

ii.  the member’s initial military occupation training;

b.  upon completion of any period of 12 months during which no conviction has been entered;

c.  upon promotion to sergeant or when an officer cadet or a non-commissioned member attains commissioned rank; or

d.  prior to release from the CAF of a member, who is to be released without having completed initial military occupation training.

 

In other words, a fine of no more that $200 is treated in a manner similar to a ‘minor punishment’ in terms of removing it from a Conduct Sheet.  A more significant punishment – including a fine of $201 – would essentially require a ‘pardon’ (technically a ‘criminal record suspension’) under the Criminal Records Act, which would take at least 5 years to obtain.

Thus, in the case of Major Bourque, the $200 fine – which was imposed based upon the military prosecutor’s consent to a ‘joint submission’ on sentencing – has the effect of a ‘minor punishment’.  As I mentioned in a previous Blog article, in light of the fact that he was charged with ‘conduct to the prejudice of good order and discipline’, contrary to section 129 of the NDA, and that this conduct was described as making “… comments that devalue females and female members of the Canadian Armed Forces …”, that could be construed as a fairly light sentence.

Compare that case to R v Desjardins, 2017 CM 3002 in which MCpl Desjardins pleaded guilty to two counts under section 129 of the NDA for making similarly objectionable comments, and was sentenced to a Reprimand and a $500.00 fine.  While all cases will turn on their own facts, there is a noticeable gap in these sentences.

In other words – and so that my interpretation of these events is crystal clear – military prosecutors were likely instructed or otherwise motivated to offer the accused an advantageous offer on a ‘joint submission’ in order to avoid having to argue a Charter motion that had, in previous cases, resulted in a judgment that the CDS’ order regarding disciplinary jurisdiction over military judges contravened the Charter.

I was not privy to any negotiations between the military prosecutor and Major Bourque’s defence counsel.  I certainly was not Major Bourque’s defence counsel.  And, if I were privy to the guilty plea settlement negotiations, I would not be permitted to describe the nature of those negotiations publicly.  I am simply offering observations and conclusions based upon my own knowledge and understanding of how the Code of Service Discipline functions.

The problem that military prosecutors faced after Commander Sukstorf delivered her judgment, verbally, on 10 July 2020, and after the CDS refused to rescind his unconstitutional order by 1330 hrs on 13 July 2020, was that this was not the same context that they faced in the earlier courts martial for Master-Corporal Pett or Corporal D’Amico.  As I explained in the relevant Blog article, Commander Sukstorf had issued an ultimatum: the CDS was expected to rescind his unconstitutional order, or the military judge would hear argument on the Application.  And Commander Sukstorf could not have been clearer about her displeasure in the continuing existence of the order.  Consider what she stated at paras 37 and 38 of her judgment:

[37]    Allowing this status quo to continue with the continual churn of applications does nothing more than degrade and erode confidence in the entire military justice system. Further, it continues to monopolize significant judicial resources, not to mention the resources of the DMP and Director of Defence Counsel Services (DDCS) thereby impairing the timely administration of military justice. As the court in Kazman concluded, a trial judge must also consider how the decision in the case before them affects the entire court calendar in other ways. In fact, this Court must weigh not just how the interests of justice lie in this specific case, but it must also assess whether the impact of a slight delay in this case will help or hinder the overall Court calendar. If this issue is resolved at the earliest opportunity, then it is expected that the recurrence of the same litigious issue will end and both the judiciary and counsel can focus on the priority of the cases before them. There is clearly no utility to permitting the status quo to continue.

[38]           As Martineau J. expressed regarding a similar rotational churn of voir dires in the case of Canada (Director of Military Prosecutions) v. Canada (Office of the Chief Military Judge), 2020 FC 330, “Is this the type of “spectacle” that we want to give to the public and to the litigants of the Code of Service Discipline?” [emphasis added]

 

Even an inexperienced or mediocre prosecutor could likely surmise that there was significant potential for Commander Sukstorf to deliver a judgment that would not be as palatable as her previous judgment in D’Amico.  And the prosecutors in the Canadian Military Prosecution Service (CMPS) are not inexperienced or mediocre advocates.  However, they are much more likely to be subject to the piercing scrutiny of their supervisors than their civilian counterparts.

And this would be a useful point in the discussion to identify a key distinction between the application of the Code of Service Discipline at court martial and the civilian criminal justice system.  Based upon the information in the JAG Annual Reports, over the past five years, the number of courts martial conducted has fluctuated between a 47 and 70 trials per fiscal period.  Notwithstanding the ‘interruption’ caused by the judgment of the Court Martial Appeal Court of Canada (CMAC) in Beaudry v R, 2018 CMAC 2018, these numbers are relatively consistent with prior years.  In contrast, summary trials during these years generally accounted for over 90% of Code of Service Discipline proceedings.

There are at least 16 full time legal officers in the Canadian Military Prosecution Service, headed by DMP.

In other words, the workload for these prosecutors is not as heavy as for civilian prosecutors.  The same can be said for the legal officers at Defence Counsel Services.  Although the number of full-time legal officers at Defence Counsel Services is roughly half of the number at the CMPS, they are also augmented by Reserve Force defence counsel.  Their case load is not as significant as many civilian defence counsel.  Moreover, as their clients do not have to pay for this service, financial limitations of Legal Aid or a client’s bank account do not generally play a significant factor (unless the accused opts to retain civilian counsel at her or his own expense).

As a result, these courts martial are subject to what may be colloquially referred to as a ‘Cadillac prosecution’ and a ‘Cadillac defence’ – the prosecutor and defence counsel will typically have an opportunity to take a more meticulous approach to the legal issues arising at trial.  And, in light of the ratio of ‘supervisors’ to ‘trial counsel’ within the CMPS (at least 4 of the 16 full-time legal officers hold the rank of Lieutenant-Colonel or higher) the military prosecutors are likely subject to a great deal of ‘supervisory scrutiny’.

Finally, unlike the civilian criminal justice system, it would not be unreasonable to suggest that, from DMP’s perspective, every constitutional challenge at court martial has the potential to alter the nature of the ‘military justice’ system – if not threaten its existence outright.  Notwithstanding that I am of the view that DMP and the Deputy Judge Advocate General – Military Justice (DJAG MJ) tend to exaggerate the ‘threat’ posed by such challenges, the opportunity for Defence Counsel Services to bring repeated constitutional challenges can certainly pose a potential disruption to the ‘proper’ functioning of the ‘military justice’ system – at least from DMP’s perspective.

In light of the CDS’ refusal to rescind his order, military prosecutors in Major Bourque’s matter faced a difficult choice: offer terms of resolution that the accused would likely accept, or attempt to defend against an application where there was an increasing likelihood that the judgment would be adverse to DMP’s desired outcome.

Consequently, the joint submission for a $200 fine is not surprising.

Perhaps the military prosecutors believed that they had avoided the awkward consequences of the CDS’ obstinate refusal to cancel his order.  However, I hope that is not the case.  Such a conclusion would be naïve.  Instead, it simply invited counsel from Defence Counsel Services to bring the same challenge for every single court martial, knowing that it would likely precipitate favourable settlement.

Frankly, military prosecutors and defence counsel should all have apprehended where this was leading.

 

R v Edwards and R v Crépeau

Which brings us to the judgments of the Deputy Chief Military Judge, Lieutenant-Colonel L-V d’Auteuil, in R v Edwards, 2020 CM 3006 and R v Crépeau, on 14 August 2020.

For over 6 months, the military judiciary had been sending a message to the CDS.  And the CDS had not been listening (or, alternatively, the CDS’ legal advisors had not been adequately conveying the message).

Consider what the Deputy Chief Military Judge observed at para 70 of his judgment in Edwards:

[70]           It can certainly be inferred from these circumstances that there is no intent, whatsoever, from the CDS, as part of the executive branch, to even try to correct the situation. No evidence was offered on this issue. It is with certainty that I conclude that the public confidence, which includes … persons subject to the CSD, could be undermined in relation to military judges’ independence and impartiality in these circumstances, considering that the executive has not even considered taking any action to ensure the maintenance of the rule of law and to preserve the accused’s right to a fair trial before an impartial and independent tribunal, despite courts martial decisions on this issue.

As a result, the prosecutions of Leading Seaman Edwards and Captain Crépeau were stayed.  And these prosecutions were not stayed as a result of frailties in evidence or procedure in the court martial.  Nor were they stayed because of abuse of process on the part of the counsel for DMP.  (It can happen: R v Spriggs, 2019 CM 4002 – although the remedy was a termination of proceedings, and not a stay.)  They were stayed because the CDS has been pointedly ignoring what the military judiciary had be stating very clearly for several months.

And that is not healthy for the Code of Service Discipline or for the CF.

But these developments in the ‘dialogue’ between the military judiciary and the CDS also suggests issues that might not be as apparent to the casual observer.  And this concerns the dynamic not between the military bench and the CDS, but between the CDS and the JAG and, potentially, the Minister of National Defence.

 

Role of the JAG – Superintendence of Military Justice

Four weeks ago, I published a Blog article describing the impact of Commander Sukstorf’s judgment in R v Bourque.  In that article (elements of which I have repeated in the present article), I suggested that the JAG would likely have met with (or at least, attempted to meet with) the CDS to discuss the impact of Commander Sukstorf’s judgment.  Frankly, I would have been shocked to learn that the JAG did not at least attempt to discuss the judgment with the CDS (or, alternatively, have an appropriate senior member of the OJAG, such as the DJAG MJ, discuss the matter with the CDS).  I also suggested that it would not be surprising if the JAG sought a meeting with the CDS in the company of both DMP and DJAG MJ.

(That said – there have been circumstances in the past in which DMP may have been less than forthcoming with the JAG regarding the implications of certain results at court martial.  After all, the JAG relies on DMP to advise her about the implications of judgments from courts martial while, at the same time, DMP can be adamant about exercising his ‘prosecutorial independence’.)

A meeting between the CDS and the JAG would have been a meeting between a statutory decision-maker and his statutory legal advisor.  It would be subject to solicitor-client confidence, and it is unlikely that the public would ever know about the nature of the meeting or discussion, or if one even took place.  This is particularly true where successive governments have demonstrated a reluctance to make such information publicly available.  Consequently, we are forced to speculate, based upon conclusions that can be drawn from observable facts.  When it comes to the Code of Service Discipline, most of those observable facts will be drawn from courts martial.  (Although courts martial remain open to the public, COVID-19 limitations can present a challenge to public access.  Fortunately, the Office of the Chief Military Judge has taken steps to permit the ‘attendance’ of the public using teleconferencing technology.)

What we do know is this:

• Commander Sukstorf issued an ultimatum to the CDS in her judgment in R v Bourque. The CDS was told to rescind the impugned order or the Charter application in Bourque (and likely, any future courts martial) would proceed.  Moreover, the presiding military judge made it abundantly clear that the counsel who appeared before her were expected to bring that ultimatum to the attention of the CDS;
• The CDS did not rescind his order;
• The same impugned order was raised in Charter applications in both Edwards and Crépeau;
• The Deputy Chief Military Judge stayed both prosecutions in light of the affront to the Rule of Law posed by the CDS order.

 

Based upon these observable facts, I offer below a series of hypothetical steps that may have arisen as a consequence of the judgment in Bourque.

I find it difficult to believe that the JAG did not pursue a timely discussion of this issue with the CDS following Commander Sukstorf’s verbal judgment on 10 July 2020.  While the potential participants in that discussion could have varied, I suggest that the requirement for that discussion was incontrovertible.

So, either the JAG sought a meeting with the CDS or she did not.  If she did not, I think all CF personnel and all Canadians would be justified in asking: why not?  The circumstances demanded a meeting between the statutory superintendent of ‘military justice’ (the JAG, pursuant to section 9.2 of the NDA) and the person responsible for the control and administration of the CF (the CDS, pursuant to section 18 of the NDA).

 

Is the CDS not listening to the JAG?

Therefore, the questions that I have include:

• Was the JAG adequately briefed by DMP and DJAG MJ, and in a timely manner? (The current JAG’s forte is International Humanitarian Law and the Law of Armed Conflict; presumably, she relied on DMP and DJAG MJ to brief her on the specific issues arising from Commander Sukstorf’s judgment.  I can only assume that DMP and the assigned prosecutor would have realized the significance of the judgment and insisted on briefing the JAG immediately.)
• Did the JAG actually discuss the issue with the CDS?
• If I am correct that the JAG sought such a meeting, but it did not arise, then the likely reason is that the CDS declined the meeting. If the CDS declined the meeting, then what does that say of the dynamic between the CDS and the JAG?
• What does that say about the CDS’ confidence in the JAG?
• And what does it say about the JAG’s ability to superintend military justice?

 

Similarly, if the CDS did meet with the JAG (or a representative of the JAG), then we can only conclude that the JAG (or her representative) either did not advise the CDS to rescind the order or, she did, and he declined to do so.  If the JAG did not advise the CDS to rescind the order, then what would that say about the respect for the Rule of Law within not only the CF, but, specifically, the OJAG?  If, as I would hope occurred, the JAG advised the CDS to rescind the order, then it would appear that the CDS is not listening to either the military judges or the JAG.  And that is a worrisome possibility.  It tends to signal that a statutory decision-maker is pointedly flouting the Rule of Law.

Let’s posit that: (1) the JAG sought, and obtained, a meeting with the CDS; (2) the JAG advised the CDS to rescind his order in the face of repeated judgments that it contravened the Charter; and (3) that the CDS chose not to follow that advice.  Frankly, of all the possible permutations of why the CDS chose not to comply with Commander Sukstorf’s ultimatum, that is the least alarming.  (But, make no mistake, it is still alarming that a statutory decision-maker would flout multiple judgments that consistently conclude that his order contravenes the Charter.)

 

What about the Minister?

If the CDS is not listening to the JAG’s advice, the JAG has an obvious recourse.  The JAG is not responsible to the CDS for the performance of her duties and functions.  Her ‘boss’ is the Minister.  Officers who are responsible for the provision of legal advice on behalf of the JAG must be posted to the Office of the JAG (QR&O 4.081).  This, purportedly, removes the JAG, and the legal advisors who advise the Governor General, the Minister, the Department of National Defence, and the Canadian Forces on her behalf, from the influence of CF chain of command when providing advice.  (However, the extent to which other factors might influence the independence of that advice remains open to analysis and speculation.)

Although the CDS has “… control and administration of the Canadian Forces …” by virtue of section 18 of the NDA, that authority is “… subject to the regulations and under the direction of the Minister …”.  The CDS is not independent of ministerial direction.  If the CDS disregards legal advice in a manner that could undermine the integrity of the Code of Service Discipline, not to mention the integrity of the Rule of Law in the administration of the affairs of the Canadian Forces, then it would certainly be open to the JAG to inform the Minister and for the Minister to intervene.

Indeed, I suggest that two important constitutional and democratic principles would be involved: respect for the Rule of Law and the civilian control of the armed forces.  If the CDS is disregarding the former, then the latter would tend to suggest that the Minister must intervene.  However, there would typically need to be a catalyst for such intervention.  The obvious catalyst would be the JAG bringing the issue to the attention of the Minister and advising on possible courses of action.

Again, due to the nature of the solicitor-client relationship, the Canadian public will likely never know if the JAG discussed this issue with the Minister – one of her statutory ‘clients’ expressly described at section 9.1 of the NDA.  She either did, or she did not.  If she did not, it would be appropriate for members of the CF and the Canadian public to ponder: why not?

Alternatively, if the JAG did raise this issue with the Minister, then it would appear that the Minister did not intervene.  (Arguably, one might suggest that another possible outcome was that the Minister did choose to intervene, but the CDS disregarded the Minister’s direction.  Frankly, such an outcome would be truly alarming in a democracy; however, I will not explore the implications of such a suggestion in the present Blog article.)

Therefore, if we proceed with the hypothesis that the JAG discussed with the CDS the implications of Commander Sukstorf’s judgment in R v Bourque, advised the CDS to rescind his order, and the CDS chose not to rescind his order, we are left with two possible courses of actions regarding her engagement with the Minister on this issue: (1) the JAG chose not to bring the issue to the attention of the Minister with appropriate advice; or, (2) the JAG did bring it to the attention of the Minister, and provided advice, but that course of action did not result in any manifest action on the part of the Minister or the CDS.

Either outcome is cause for concern.  To put it bluntly, either the JAG is not being sufficiently resolute in defence of the Rule of Law, or she is, and the CDS and/or the Minister are not heeding her advice.

 

Is there another explanation?

Granted, that is a pointed and alarming conclusion to draw.  And I can think of at least one counter argument that could be brought to contest my conclusion.  Specifically, the JAG, or one of her subordinates, could contend that I am ignoring the practical dynamic arising from the outcomes at court martial.

In both Pett and D’Amico, notwithstanding that the military judges held that the CDS’ order contravened section 11(d) of the Charter, they also held that, for the purposes of the specific court martial, the order had no force or effect.  This enabled the judges to decline the remedy sought by the accused (a stay of prosecution) and proceed with the court martial.  In both those cases, DMP had no grounds (or, frankly, motive) to appeal the judgment.  It is my understanding that a Notice of Appeal was initially filed by MCpl Pett, but it was subsequently abandoned.

In Bourque, Commander Sukstorf may have issued an ultimatum that was ignored by the CDS, but the consequence of the CDS’ inaction would have been a hearing of the Charter application by the accused.  This outcome was avoided (presumably) by the military prosecutor either offering an advantageous joint submission on sentencing to the accused or, conversely, accepting the same from the accused.  This outcome also resulted in circumstances that would not lead to an appeal.

One could argue, therefore, that the contentious issue of whether the CDS order contravened the Charter has still not been subject to an appellate decision or the judgment of a ‘section 96 court’.  As I have mentioned previously, a court martial does not have the inherent jurisdiction of a ‘section 96 court’ to declare the CDS’ order to have no force or effect beyond the immediate court martial.

While such an argument is true, insofar as it goes, I suggest it is disingenuous.  DMP could have put the judgement to the test in Bourque.  The military prosecutors could have essentially said: ‘We disagree with the repeated judgments of military judges regarding the CDS’ order, so we will defend against this application at first instance and then let the matter proceed to the Court Martial Appeal Court of Canada (CMAC).’  But they didn’t.  Instead, they settled the matter to avoid the possibility of a more definitive judgment from the CMAC.

 

What does this mean for the Code of Service Discipline?

And I suggest that neither DMP nor the JAG considered the possible reaction from the military bench.  Anyone with a moderate understanding of the Code of Service Discipline could see that the military judges, as a group, found the CDS’ order to be intolerable.  Notwithstanding that the current order is simply a variation on previous orders that have existed for a number of years, the dynamic between the military judiciary and the executive changed with the highly problematic prosecution of the former Chief Military Judge.  The impact of this change in dynamic could not reasonably have come as a surprise to the JAG, DMP, or DJAG MJ.  It has been a centrepiece of public discourse on the Code of Service Discipline for the past 2 ½ years, and was expressly mentioned in some of the more recent application materials filed by defence counsel in their Charter applications relating to the impugned CDS order.

This has amounted to a juridical ‘game of chicken’, the outcome of which, I suggest, was plainly obvious.

And this has led us to the current juncture in this dialogue between the military judges and the CDS.  And I suggest that the CDS’ chief legal translator in this dialogue – the JAG – has failed to impress upon the CDS, and potentially the Minister, the implications arising from the course of action pursued by the CDS.

Like other members of the Canadian public, I do not know what, if any, discussions the JAG has had with the CDS or the Minister about the CDS’ impugned order.  However, as I describe above, she either chose not to make a stand in favour of the Rule of Law, or she did make a stand, and it was not sufficiently effective.  Either possibility signals a concern regarding the superintendence of military justice.

In light of the judgments in Edwards and Crépeau, we can anticipate that the legal officers at Defence Counsel Services will continue to bring Charter applications under section 11(d) for as long as the impugned CDS order persists.  If the CDS continues to refuse to rescind his order, we can anticipate that military judges will respond with orders staying the prosecutions.

DMP may choose to appeal the judgments in Edwards and Crépeau.  Even if appeals are pursued, the prosecution of Code of Service Discipline offences before court martial may well grind to a halt, making the disruption following Beaudry v R, 2018 CMAC 4 look minor in comparison.  As I have suggested previously, the CDS may not be particularly bothered by this outcome.  After all, he is retiring as soon as the Governor in Council can identify his successor, and he appears to prefer administrative measures to punish breaches of discipline.

 

Conclusion

From my perspective, the most significant lesson to be drawn from the litigation concerning the CDS’ impugned order does not concern the issue of judicial independence in the Code of Service Discipline.  Rather, it is about the importance of the role of the JAG, and the legal officers in the Office of the JAG, in defending the Rule of Law in the administration of the affairs of the Canadian Forces.  I have been critical over the past 3 years of what I perceive as a laissez-faire approach of the current JAG regarding this issue.  I have suggested that there is a reluctance to ‘rock the boat’ on contentious issues or to suggest to a statutory decision-maker that something is improper or unlawful unless it is manifestly unlawful.  I have couched my criticism in what could be construed as ‘gentle terminology’.  However, that ‘gentle criticism’ appears to have fallen on deaf ears.

The time has come for some blunt discussion.  We can anticipate that the current CDS will retire in the coming months, if not weeks.  His successor will encounter challenges with respect to the continued administration of ‘Op HONOUR’, the use of administrative measures as disciplinary punishment, and the deterioration of the Code of Service Discipline.  Corrective action will be required.  The JAG, who has a year remaining in her statutorily-limited tenure (acknowledging that there is no prohibition against reappointment), will have an opportunity to correct the problematic course set by the current CDS.  She will have an opportunity to re-instill respect for the Rule of Law in the senior leadership of the CF.

The question for anyone with an interest in military justice is this: Will she?