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September 26, 2020
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October 12, 2020

Judgments as ‘Remedial Measures’

As I was examining the recent developments in the Code of Service Discipline, it occurred to me that the ‘dialogue’ between military judges and the CDS (and other senior CF decision-makers and advisors) regarding ‘judicial independence’ over the past 9 months could be likened to the use of remedial measures under Defence Administrative Order and Directive (DAOD) 5019-4.

Bear with me.

Anyone familiar with DAOD 5019-4 – particularly if they have been paying attention to my recent Blog articles that have dealt with this directive – will be aware of the following key facets of this directive:

  1. First, as a general principle, “[r]emedial measures are serious steps to assist a CAF member in overcoming their conduct or performance deficiency and are based on established CAF standards.” (para 3.2)
  2. Second, remedial measures are not intended to be used as disciplinary punishment, although they can be used in concert with disciplinary action. (para 3.13 to 3.15)
  3. Finally, remedial measures should follow a progressive or graduated approach. (paras 4.6 to 4.8)  In other words, not unlike disciplinary action, an ‘initiating authority’ should select the lowest remedial measure necessary to assist the CF member in overcoming the deficiency.

I have stressed – and continue to stress – that remedial measures should not be used as a substitute for disciplinary action.  Regrettably, as the leadership of the Canadian Forces (CF) appears to be turning away from using the Code of Service Discipline to ‘… maintain the discipline, morale , and efficiency of the Canadian Forces …’, it appears that remedial measures will increasingly be used for such improper purposes.

However, the recent dialogue on ‘judicial independence’, particularly how the Military Judges have communicated their concerns to the CDS, does represent an interesting dynamic that illuminates key principles in the use of  remedial measures.  In so doing, I will examine the recent court martial judgments relating to the Chief of the Defence Staff’s (CDS) Order: Designation of Commanding Officers with Respect to Officers and Non-Commissioned Members on the Strength of the Office of the Chief Military Judge, dated 2 October 2019 (the ‘Designation Order’) through the lens of remedial measures.

And, to be clear: I am not suggesting that these judgments are actual remedial measures, imposed under DAOD 5019-4.  But the nature of these judgments, and the manner in which Military Judges have sought to influence the conduct of key CF decision-makers – most particularly the CDS – offer useful lessons for CF statutory decision-makers whose functions include applying remedial measures.  This context offers an example of what good judgment, objectivity, prudence and fairness look like when properly applied by a professional decision-maker – in these particular circumstances, Military Judges.

 

Remedial Measures

There are three principal ‘remedial measures’ that can be imposed on a CF member, preferably by employing a progressive or graduated approach.  In ascending order or significance, these are (DAOD 5019-4, para 3.7):

  1. Initial Counselling (IC);
  2. Recorded Warning (RW); and
  3. Counselling and Probation (C&P).

These measures are intended to (para 3.6):

  1. make the CAF member aware of any conduct or performance deficiency;
  2. assist the CAF member in overcoming the deficiency; and
  3. provide the CAF member with time to correct their conduct or improve their performance.

Under DAOD 5019-4, the ‘initiating authority’ for remedial measures varies depending upon the subject matter (para 3.9).  Potential initiating authorities range from commanding officers (CO) up to the CDS.  In some cases, the initiating authority may be a staff principal in National Defence Headquarters (NDHQ) such as Director Military Careers Administration (DMCA) or a Director General such as Director General Military Careers (DGMC).  Generally, the initiating authority will be a senior officer in the ‘chain of command’.

The most senior person in that list is the CDS.  Therefore, from a practical perspective, no one is in a position to impose remedial measures on the CDS.

The suggestion that it might be appropriate or necessary for a framework by which the CDS could be subjected to remedial measures might be met with some skepticism or derision.  After all, if someone rises to the position of CDS, it would be fairly unlikely that he (or she) would demonstrate a conduct or performance deficiency that would merit a remedial measure.

Second, the purpose of remedial measures is to provide a framework for the chain of command to assist a CF member in overcoming the conduct or performance deficiency.  Arguably, since the CDS is at the apex of the chain of command, it is neither necessary, nor appropriate, for there to be a framework by which the CDS would be subject to remedial measures.  If the CDS demonstrates a performance- or conduct-related deficiency, then the Governor in Council could choose to remove him from that position.  An argument could be made that his is a truly ‘at pleasure’ position.

That said, and before you are too quick to dismiss the suggestion that remedial measures might be relevant for the CDS, it would be useful to recall that, when he was the Vice Chief of the Defence Staff (VCDS) – essentially the ‘second in command’ of the Canadian Forces after the CDS – Vice-Admiral (VAdm) Mark Norman was subject to ‘administrative action’ other than remedial measures (DAOD 5019-4, paras 3.10 to 3.12).  When Criminal Code charges were laid against VAdm Norman – charges that were later withdrawn – the CDS ‘suspended’ him from the position of VCDS.  At the time, it was unclear whether the CDS was ‘relieving him from performance of military duty’.  Frankly, it remains unclear what the CDS was actually doing when he ‘suspended’ VAdm Norman.

Thus, even very senior officers could, potentially, be subject to administrative action, including remedial measures.  But, practically, no one is in a position to impose actual remedial measures, pursuant to DAOD 5019-4, on the CDS.

 

‘Judicial Remedial Measures’ for the CDS

A variety of judgments at court martial over the past 9 months can be viewed through the lens of remedial measures as ‘judicial remedial measures’ for the CDS with respect to his approach to the independence of military judiciary.  I place that term in inverted commas, because Military Judges cannot actually impose remedial measures, pursuant to DAOD 5019-4, upon the CDS.  However, I do suggest that the series of judgments over the past 9 months served a similar function to remedial measures.  More particularly, these judgments offer some lessons in statutory decision-making that would be useful for CF decision-makers whose functions include the application of remedial measures.

These judgments were progressive and followed a path of gradual escalation.  They were conveyed in a manner that made the CDS aware of the deficiency in his approach to the Code of Service Discipline.  They provided detailed descriptions of the defects in his Designation Order in order to assist him in overcoming that deficiency.  And, the time that elapsed between these judgments provided the CDS with time to correct the deficiency.

Therefore, for the purposes of the present Blog article, I will employ the slightly tongue-in-cheek expression ‘judicial remedial measures’.

 

‘Judicial Initial Counselling (IC)’

The judgements in R v Master-Corporal Pett, 2020 CM 4002 [Pett] and R v Corporal D’Amico, 2020 CM 2002 [D’Amico] represent the ‘judicial IC’ imposed on the CDS.  Military Judges Commander Pelletier and Commander Sukstorf, respectively, held that the Designation Order undermined judicial independence.  Although they held that the Designation Order was inconsistent with the Canadian Charter of Rights and Freedoms [Charter] – specifically, the requirement for a fair and impartial tribunal under section 11(d) of the Charter – they also declared the order of no force or effect as a result of their conclusions that it contravened the Charter.  As a result of their case-specific determinations and declarations, the prosecutions were permitted to proceed.  As we will discuss below, a Military Judge sitting at court martial only has jurisdiction over the matter before that specific court martial, and does not have the jurisdiction to declare legislation, or even an order, of no force or effect, for all other potential proceedings.

A key consequence of the applications brought by the accused in those matters was that they did not bar the prosecutions from proceeding.  The applications, and the subsequent judgments, did not frustrate the chain of command’s wish to discipline the accused (or offender, once a finding of guilt was made).  But the judgments were sufficient to signal to the CDS that the Designation Order was problematic and should either be rescinded or, if feasible, altered to make it consistent with the Charter.

However, nothing was done.

 

‘Judicial Recorded Warning (RW)’

In the absence of any action by the CDS to correct the deficiency, Charter applications by individual accused continued, challenging the Designation Order’s impact on judicial independence.  Military Judges continued to conclude that the Designation Order contravened the Charter and to declare it of no force or effect.  However, as a statutory ad hoc court, the military judges could only make declarations regarding the matters before the specific court martial.  They could not, in effect, strike down the order by way of a declaration that would render it of no force or effect for all courts martial.  They could only signal, repeatedly, that it was inconsistent with the Charter and thereby encourage the CDS to rescind it.

He did not.

Therefore, in R v Major Bourque, 2020 CM 2008 [Bourque], Military Judge Commander Sukstorf issued an ultimatum (albeit a ‘gentle’ ultimatum].  She observed that different accused had repeatedly challenged the Designation Order under the Charter, and Military Judges had repeatedly found it of no force or effect.  She explained that, in light of the nature of the jurisdiction of courts martial, Military Judges could not strike down the order, but that, until it was rescinded, it was reasonable to expect this cycle of applications to continue.  She quoted Justice Martineau from 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?”  On Friday, 10 July 2020, she adjourned the matter until 1330 hrs the following Monday to provide the CDS with time to rescind the impugned Designation Order.

The ‘following Monday’ arrived, and the order had still not been rescinded.  Indeed, there was deafening silence from the CDS on that point.  This appears to have prompted the prosecutors in the Canadian Military Prosecution Service (CMPS) to offer the accused an attractive ‘guilty plea resolution’ by way of a joint submission for a $200 fine (R v Major Bourque, 2020 CM 2009) .  I have, previously, provided an analysis of what may have motivated this ‘sweetheart deal’.

It appears that the ‘Judicial RW’ had little effect on the CDS.

 

‘Judicial Counselling and Probation (C&P)’

In light of the CDS’ apparent intransigence on the matter, the Military Judges were obliged to escalate to the highest level ‘judicial remedial measure’ available to them: a stay of prosecution.  Perhaps the absence of any seeming adverse implications arising from his refusal to rescind the impugned Designation Order emboldened the CDS to continue to ignore what ought to have been, to any reasonable observer, a clear escalation of judicial objection.

In any event, I suspect that the CDS’ attention became more focused in mid-August when Deputy Chief Military Judge, Lieutenant-Colonel L-V d’Auteuil issued stays of prosecutions in R v Leading Seaman Edwards, 2020 CM 3006 [Edwards] and R c Capitaine Crépeau, 2020 CM 3007 [Crépeau].  In Edwards, the accused was actually being retried after the Minister (from a practical perspective, Director Military Prosecutions) successfully appealed the acquittal in R v Leading Seaman Edwards, 2018 CM 4018.  In the first trial, in which Leading Seaman Edwards was charged with use of prohibited drugs under section 129 of the National Defence Act (NDA), the presiding military judge held that, for a charge of “conduct to the prejudice of good order and discipline” contrary to subsection 129 (2) of the NDA, time and place of the alleged offence were essential elements of the offence. Upon being satisfied that neither was proven beyond a reasonable doubt, the Military judge acquitted the accused.  In R v Edwards, 2019 CMAC 4, the Court Martial Appeal Court of Canada allowed the appeal, quashed the acquittal, and ordered a new trial.

So much for the new trial.

Captain Crépeau, a public affairs officer, was alleged to have misrepresented her rank during a NATO exercise (potentially ‘conduct prejudicial to good order and discipline’) and for behaving with contempt toward a superior.  Those allegations will also not be scrutinized at trial – at least, not unless the CMAC quashes the stay ordered by the Deputy Chief Military Judge, following the appeal that has been brought by the Minister.

Even after these two prosecutions were stayed, the CDS still refused to rescind, or even suspend, his impugned Designation Order.

Nearly a month passed, and in R c Artilleur Fontaine, 2020 CM 3008 [Fontaine], the Deputy Chief Military Judge stayed a prosecution against a Gunner (i.e. an artillery Private) who had been charged with one count of trafficking cocaine and two counts of possession of cocaine and methamphetamine for the purposes of trafficking.  The reasons for the stay were the same as for Edwards and Crépeau: the CDS’ continuing refusal to rescind his impugned Delegation Order, its adverse effect on judicial independence, and the disrepute that it was visiting upon the military justice system.  As the Deputy Chief Military Judge expressed in Fontaine, the confidence that the public and members of the CF have in the Code of Service Discipline rests, among other things, on the independence and impartiality of the military judge who presides over the court martial.  The continued existence of the impugned Designation Order, particularly in the face of repeated judgments at court martial that it contravened the Charter, undermined that judicial independence and, therefore, confidence in the Code of Service Discipline.

It appeared that even the ‘Judicial C&P’ was having no effect on the CDS.

Finally, a day after the judgment in Fontaine, Military Judge Commander Pelletier stayed the prosecution in R v Captain Iredale, 2020 CM 4011 (the written reasons for judgment were delivered on 17 September 2020).  Unlike the several preceding judgments, this particular judgment and order finally appeared to gain the CDS’ undivided attention.  Although this is speculation on my part, I suspect it has something to do with the charges that were stayed: Captain Iredale was initially charged with three counts of ‘disgraceful conduct’ (section 93 of the NDA) and three counts of ‘conduct to the prejudice of good order and discipline’ (section 93 of the NDA).  However, military prosecutors preferred  three counts of sexual assault (section 271 of the Criminal Code, pursuant to para 130(1)(a) of the NDA) in lieu of the ‘disgraceful conduct’ charges, plus the three counts of ‘conduct prejudicial to good order and discipline’ that had initially been charged.

The reasons for the stayed prosecution were essentially the same as in Edwards, Crépeau, and Fontaine: the CDS’ refusal to rescind his impugned Designation Order.  The frustration of the Military Judges was palpable.

On 15 September 2020, the CDS finally suspended his order, pending the appeals brought by the Minister.  It would appear that he finally started listening to what the Military Judges had been communication in their judgments throughout the first 9 months of 2020.  The ‘judicial remedial measures’ finally had their effect.

 

So what can we learn from this?

If we were to characterize this series of judgments at court martial as ‘judicial remedial measures’ imposed on someone who, from a practical perspective, would not otherwise be subject to remedial measures, we can draw lessons for the CF statutory decision-makers whose functions include the use of actual remedial measures.  I suggest that, although they were not applying actual remedial measures, the Military Judges demonstrated the following elements that are consistent with the policy promulgated under DAOD 5019-4:

  1. Progressive or Graduated Approach.  The Military Judges did not immediately resort to stays of prosecutions (i.e. Judicial C&P).  First they signalled their conclusions and declarations regarding the Designation Order’s inconsistency with the Charter (i.e. Judicial IC).  They then escalated to an ultimatum communicated with a high degree of certainty (i.e. Judicial RW).  Finally, when prior measures to assist the CDS in acknowledging the deficiency of his order failed, they resorted to the highest ‘judicial remedial measure’ available to them: a stay of prosecution (i.e. Judicial C&P).  Granted, it took stays on three separate occasions, from two different judges, in four courts martial, to encourage the CDS to correct the deficiency, but they were eventually successful.
  2.  Made the CDS Aware of the Deficiency.  Three of the four serving Military Judges communicated their concerns, repeatedly, in detailed judgments, issued publicly.
  3. Gave the CDS time to Correct the Deficiency.  These judgments were delivered over a period of nearly 9 months.  Approximately five months transpired between the initial judgment in Pett before Commander Sukstorf issued her ‘Judicial RW’ in Bourque.  Another month passed before Lieutenant-Colonel d’Auteuil issued his ‘Judicial C&P’ in Edwards and Crépeau.  And yet another month passed before Lieutenant-Colonel d’Auteuil and Commander Pelletier issued their ‘Judicial C&P’ in Fontaine and Iredale, respectively.  There was no rush to escalate these remedial measures.

Thus, in addition to understanding the importance of judicial independence in the Code of Service Discipline, senior leaders in the CF can learn a good deal about the proper use of remedial measures from how the Military Judges handled this issue.  I have observed previously that initiating authorities in the CF have a tendency to disregard the progressive or graduated approach to remedial measures, particularly in the context of Op HONOUR.  The contents of the forms used when initiating authorities impose remedial measures are often vague or imprecise.  It is not uncommon for ‘conduct-related’ issues to be raised in ‘performance-related’ remedial measures and vice versa.  There is often a lack of particularity, both in terms of the deficiency, and in terms of how it can be improved.  Boiler-plate language abounds.

One of the most problematic practices is the use of remedial measures as substitute disciplinary punishment, when the chain of command wishes to avoid the scrutiny that can arise in a court martial.  In those cases, the remedial measures are not being used in a genuine effort to assist the CF member with overcoming a deficiency; they are being used to ‘paper the file’ in support of the ”ultimate’ remedial measure: compulsory release.

In addressing the issue of judicial independence in the shadow of the CDS’ Designation Order, the Military Judges have demonstrated the reasonable, graduated, and progressive approach that ought to be used by all initiating authorities.  They have demonstrated the importance of clear and comprehensive discussion of the deficiency and a collaborative approach to resolving the issue.  They have demonstrated that, sometimes, the CF member requires time and opportunity to correct the deficiency.  As I say, initiating authorities could learn a great deal from how the Military Judges handled this matter.

 

And, as for the stays of prosecutions …

I suspect that a fair number of people are upset about the fact that four courts martial were stayed by Military Judges.  Unless those orders are quashed on appeal, they will bar further prosecution of those matters, even before civil courts.  The charges that have been stayed range across a broad spectrum in terms of seriousness.  Notwithstanding that allegations of trafficking and possession for trafficking in ‘hard drugs’ represent serious charges, I suspect that many people are focused on the allegations against Captain Iredale.

Certainly, punishing sexual misconduct is a priority for the CDS, and he has made that a priority for the chain of command of the Canadian Forces through Op HONOUR.  He has been rather clear over the course of most of his tenure as CDS that this is part of his desired legacy – he indicated that, under his leadership, the Canadian Forces would “eliminate” sexual misconduct.

I imagine that there are a few people who would be inclined to criticize or blame the Military Judges who stayed the above-mentioned prosecutions.  However, I would suggest that such criticism or blame is undeserved.  There may be someone to blame, but it isn’t the Military Judges.

If you are looking to blame someone, I suggest that you start with the person who consistently refused to rescind or suspend an impugned order that had repeatedly been declared to be inconsistent with the Charter.

I suggest that you start with General Vance.

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