Judgments from the Court Martial Appeal Court of Canada – R v Bruyère

7 January 2024

 

[As indicated in my year-end round-up on 2 January 2024, I had neglected to offer a review of several noteworthy judgments from the Court Martial Appeal Court of Canada.  In the coming days, I shall attempt to remedy that oversight.  We will deal with each chronologically.]

In late February 2023, the Court Martial Appeal Court of Canada (CMAC) handed down the first two judgments of 2023: R v Bruyère, 2023 CMAC 1 (on 21 February 2023) and R v Vu, 2023 CMAC 2 (on 27 February).  Both were appeals by the Minister of National Defence (MND), represented by the Director of Military Prosecutions (DMP), and both were unsuccessful.

These judgments were noteworthy for different reasons, and I shall deal with them in turn.  The present Blog post will address R v Bruyère; the next blog post will address R v Vu.

 

R v Bruyère, 2023 CMAC 1

The CMAC judgment in R v Bruyère was neither particularly revelatory of significant issues of law nor controversial.  Nor was it, particularly, a surprise.  However, the merit of the judgment – or, perhaps more specifically, the merit of examining and discussing the judgment – is what is exposed when reading between the lines of the reasons provided by Doyon J.A.

Following an unsuccessful application under the Canadian Charter of Rights and Freedoms (Charter) relating to the independence of the court martial (R c Soldat Bruyère, 2021 CM 5015), the offender, a private in the Regular Force component of the Canadian Forces (CF), pled guilty to assault simpliciter, contrary to para 266(a) of the Criminal Code, incorporated into the Code of Service Discipline under para 130(1)(b) of the National Defence Act (NDA) and to having “fought with a person subject to the Code of Service Discipline” contrary to section 86 of the NDA.

The MND – represented by the DMP (see section 230.1 of the NDA, specifically para 230.1(c)) – appealed the legality of the sentence imposed by the Military Judge, Commander (Cdr) C.J. Deschênes, presiding over a Standing Court Martial.  DMP argued that the sentence imposed by the Military Judge was demonstrably unfit and that the Military Judge erred in applying principles of sentencing.  The thrust of the appeal was that DMP contested the leniency of the sentence, which the CMAC held (considering both R v Lacasse, 2015 SCC 64 and the permitted statutory grounds of appeal by the Minister under the NDA) was not an acceptable ground of appeal: See R v Bruyère, 2023 CMAC 1, paras 12 and 13.  The Court nevertheless proceeded with its analysis.

 

Background of the offences

The offences occurred while the offender was on a personal trip to Cuba with his girlfriend, who was the victim of the assault.  His girlfriend was also a member of the CF, and held the rank of corporal.  The facts summarized by the Court at paras 5 to 7 of the judgment describe a violent assault.  This summary also notes that the offender attacked his girlfriend a second time and then fought with another corporal (who was unidentified in the CMAC judgment but who was identified at R c Bruyère, 2022 CM 5004 as Corporal Berthelot).  Corporal Berthelot was also on a personal trip to Cuba, and he intervened and tried to protect the offender’s girlfriend.

Although the judgment of the CMAC does expressly state that the conviction under section 86 of the NDA arose from the offender’s subsequent fight with the unidentified corporal, the sentencing judgment at R c Bruyère, 2022 CM 5004 does clarify this issue.  Moreover, the principle from Kienapple v R, [1975] 1 SCR 729 would preclude convicting the offender under s 86 of the NDA for the same material facts upon which the conviction for assault (of the offender’s girlfriend) was based.

The facts iterated by the CMAC do not state whether this personal trip arose on leave from a Special Duty Operation or Special Duty Area, although jurisdiction of the Code of Service Discipline was not dependent upon such circumstances.

People may be inclined to speculate that DMP chose to prosecute this matter under the Code of Service Discipline since it was unlikely that a civilian Crown Attorney would have been keen to pursue such a prosecution.  We’d also be left to speculate what might have occurred if the allegation had been sexual assault, since, contrary to the much-touted policy announcement by the MND and her direction to the DMP and the Canadian Forces Provost Marshal (CFPM), allegations of sexual assault are still being investigated by the military police and prosecuted under the Code of Service Discipline.

The facts described by the Court represent a fairly violent assault and, initially, the offender had been accused of assault causing bodily harm, contrary to paragraph 267(b) of the Criminal Code.  It appears that DMP consented to a guilty plea to the lesser (included) offence of assault simpliciter as part of a plea resolution agreement.  As the Court observed at para 10 of its judgment:

The Respondent has admitted to having committed assault, but there has been no admission as to the existence of bodily harm; therefore, this bodily harm could not be taken into account in determining the appropriate sentence even if there had in fact been bodily harm.

 

Although this matter was resolved by way of a guilty plea, it was not a joint submission.  The principles from R v Anthony‑Cook, 2016 SCC 43 did not apply.  Based upon the information presented in the CMAC judgment, and in the sentencing judgment at R c Bruyère, 2022 CM 5004, we know that the offender was initially charged with four offences:  Charge 1: assault causing bodily harm to a person (para 267(b) Criminal Code); Charge 2: assault (para 266(a) Criminal Code); Charge 3: fought with a person subject to the Code of Service Discipline (s 86 NDA); and, Charge 4: drunkenness (s 97 NDA).  Charges 1 and 2 were prosecuted under the Code of Service Discipline by virtue of s 130 of the NDA.  Charges 2 and 4 were withdrawn by the military prosecutor, presumably as part of a negotiated guilty plea resolution.

It is an assumption that the military prosecutors agreed to accept a guilty plea to the lesser (included) offence of assault simpliciter for Charge 1, and to Charge 3, and to withdraw charges 2 and 4, followed by contested submissions on sentencing.  Though this is an assumption, it is one strongly supported by the information available.

We do know from the judgment that there was a 4-day sentencing hearing, and that significant evidence was presented for sentencing.  We also know that the defence requested an Absolute Discharge, or, alternatively, a $1,000 fine.  The prosecutor from DMP requested imprisonment for 90 days.  The Military Judge imposed a sentence that fell between those two positions: a $3,000 fine and a severe reprimand.

DMP appealed.

Unsuccessfully.

 

CMAC Analysis

The CMAC reviewed the Military Judge’s reasons for sentencing and applied their analysis within the context of R v Lacasse, 2015 SCC 64 : “… except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.” (para 11).  The CMAC also reviewed the Military Judge’s application of the statutory principles of sentencing, particularly those set out in sections 203.1 to 203.3 of the NDA.  The Court found that she did so correctly.

As the court had foreshadowed in the opening para of its judgement: “Sentencing is an art that bears no resemblance to science: R v Parranto, 2021 SCC 46, at para 9. Rather, it brings to mind a detailed work of embroidery made up of a myriad of tiny stitches.”

As I say, this matter was not particularly revelatory.  Nor does it establish any new principles of law.  A review of the Court’s relatively brief reasons reveals some pointed criticism of the position taken by DMP on behalf of the MND.  Note the comments in paras 14 to 17 of the judgment discussing the position taken by DMP regarding the purported failure by the military judge to consider the appropriate ‘sentencing range’:

[14] The Appellant underscores the sentencing range established by the Judge. In his view, this range is incorrect because the Judge failed to take into account judgments and decisions rendered within the civilian justice system. The Appellant is wrong.

[15] The Appellant is of the opinion that imprisonment is required. His submissions suggest that imprisonment would be the only appropriate sentence if a suitable range—namely, sentences varying from three to seven months’ imprisonment—were to be relied on. He cites R. v. Forsyth, 2003 CMAC 9, 6 CMAR 329 in support of his position. A desire to make imprisonment a minimum sentence can even be sensed.

[16] The Judge instead adopted a range of a fine, combined with a reprimand, to eight months’ imprisonment. These two ranges are not so dissimilar save for the lower end of the ranges, with the understanding that in any case, these ranges cannot be binding.

[17] The argument is astonishingly rigid. A range of sentences is not a limitation; rather, it is only a guideline that may be breached in the search for a proportionate individualized sentence. In this regard, the Appellant adds that the Judge did not sufficiently explain why she departed from the range that he proposed.

 

The Court offered a resounding endorsement of the Military Judge’s reasoning.

This judgment was not particularly revelatory of the relevant legal principles, though it does serve as a tidy summary of relevant principles regarding sentencing in the military justice system.  It also provides context to discuss a couple of ongoing shortcomings within the Code of Service Discipline.  Specifically, it offers an opportunity to discuss the absence of the capacity of a Military Judge to order: (a) a conditional discharge; and, (b) probation.

 

Evolution & ‘Civilianization’ of Military Justice

The Military Justice system has undergone gradual “civilianization” over the 25 years since Bill C-25 was enacted.  “Judge Advocates” evolved into “Military Judges”.  In General Courts Martial (GCM) – roughly analogous to jury trials – the Military Judge sits at the head of the court, rather than the President of the Panel.  Before the enactment of Bill C-25, the “Judge Advocate” – the legal advisor to the Panel – sat to the side of the Panel.  Indeed, the senior member of the GCM Panel is no longer called the “President” of the court martial, but simply the “senior member”.  Although Military Judges were initially appointed to 5-year terms renewable by the Minister, they were since granted greater security of tenure (and, therefore, presumably, independence) by appointment until they reach Compulsory Retirement Age (see: NDA, subs 165.21(4); R v Leblanc, 2011 CMAC 2; Strengthening Military Justice in the Defence of Canada Act, SC 2013, c 24; Rory Fowler, “Disciplining Military Judges” (20 February 2020), online: Law Office of Rory G Fowler).  Similarly, the right of an accused to elect a specific type of court martial (rather than leaving that election to DMP), was the product of subsequent (hasty) legislative amendment driven by an appellate judgment that was contrary to the position advanced by DMP (NDA, s 165.193; R v Trépanier, 2008 CMAC 3; Bill C-60: An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, SC 2008, c 29).

More recently, the much-vaunted Victims Bill of Rights was incorporated into the Code of Service Discipline (along with summary hearings and service infractions) under Bill C-77 (although it took three years to enact the regulations that would bring much of that Act into force).  Notwithstanding the delay in that legislative action, many of the facets of civilian criminal justice – such as Victim Impact Statements – were already incorporated into military justice by prior amendment of the NDA or as a matter of judicial or governmental policy.  (Frankly, much of what was brought into force in Bill C-77 could have been introduced through policy instruments.  The CF has a long track record of using policy instruments to alter the Crown-soldier relationship.  However, that is a topic for another time.)

My point here is that the Military Justice system has been subject to incremental “civilianization”.  The Code of Service Discipline has increasingly reflected the norms of the civilian criminal justice system.  And that’s not necessarily a ‘bad thing’.  This ‘civilianization’ has incorporated beneficial elements of the civilian criminal justice system, while maintaining a distinct military character.  Indeed, the MND’s direction to the CFPM and DMP that allegations of sexual criminal offences will be investigated by civilian police and prosecuted before civil courts of criminal jurisdiction, demonstrates a degree of ‘interoperability’.  [However, that direction remains problematic since the MND should not be issuing direction directly to the CFPM and DMP: Rory Fowler, “The MND’s New Policy and the Rule of Law” (19 November 2021). And there are indications that this policy direction is not being followed consistently, in part because the MND has no authority over civil police forces or the civil courts: Rory Fowler, “Impact of Access to Justice on Sexual Misconduct Charges” (23 June 2022).]

 

But not entirely …

There are some obvious examples of where the Military Justice system has stopped short of the civil criminal justice system.  Perhaps one of the most obvious examples is that Military Judges remain officers in the CF.

Some commentators on Canada’s Military Justice system have insisted that this is a fundamental failing of the Code of Service Discipline.  They cite, selectively, continental European systems as examples of reform (notwithstanding that their legal systems are markedly different).  More recently, they have begun to cite the UK military justice system, in which the judges who preside over courts martial are now civilians.

However, other Common Law military justice systems, such as those in the US and Australia, have maintained uniformed military judges.  And, objectively, military judges under the American Uniform Code of Military Justice are less independent than Canadian military judges.  There is no one system that is determinative of what Canada should do.  And this factor featured prominently in the appeal of R v Edwards et al, 2021 CMAC 2, which the Supreme Court of Canada heard in October 2023: (Leading Seaman C.D. Edwards, et al. v His Majesty the King, 2023 CanLII 6097 (SCC)).

And, while the independence of the military judiciary represents a significant issue, for the present, I wish to address a less evocative subject, but one that retains some practical significance: the lack of availability of a conditional discharge or probation as a disposition or sentence for offences tried by court martial.

By virtue of the implementation of significant portions of Bill C-77 on 20 June 2022, the Code of Service Discipline was essentially bifurcated: service offences, established in sections 72 through 130 of the NDA, are now only tried by court martial.  Service infractions, created under the authority of the NDA, but which are only defined in regulation under chapter 120 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), are prosecuted under summary hearings, which have a lower evidentiary threshold and far fewer protections for fairness and reasonableness in the outcome.  The discussion below is limited to service offences tried by court martial.

 

Conditional Discharge

Contrary to the occasional reference that you may read or hear when people discuss types of release from the CF (typically, compulsory release) the termination of a CF member’s service in the CF is not a ‘discharge’.  It is a release.  I have discussed this particular issue previously: Rory Fowler, “A Word or Two on Release Items in the Canadian Forces”, (18 January 2021).

In the civilian criminal justice system, a “discharge” is a type of disposition under the Criminal Code following a finding of guilt.  It is not a sentence.  Nor does it lead to a conviction.  A conviction under the Criminal Code arises from a finding of guilt (whether following trial or a guilty plea) combined with a sentence.  A discharge is essentially what the name suggests: it discharges the offender without conviction.  Under subsection 730(1) of the Criminal Code:

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

 

Section 730 of the Criminal Code sets out both objectively articulable factors, as well as subjective factors.  A discharge is expressly not available where one or more of the offences charged:

• Has a minimum sentence (e.g., robbery with a restricted firearm contrary to subsection 344(1) of the Criminal Code); or
• Has a maximum punishment of imprisonment for 14 years or for life (e.g., sexual assault, contrary to section 271 of the Criminal Code).

 

The determination of the “best interests of the accused” and whether it would be “contrary to the public interest” represent much more flexible considerations and are discussed below.

The effect of the discharge is described at subsection 730(3) of the Criminal Code:

(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence except that

(a) the offender may appeal from the determination of guilt as if it were a conviction in respect of the offence;

(b) the Attorney General and, in the case of summary conviction proceedings, the informant or the informant’s agent may appeal from the decision of the court not to convict the offender of the offence as if that decision were a judgment or verdict of acquittal of the offence or a dismissal of the information against the offender; and

(c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.

 

There are two types of discharge available under the Criminal Code: (a) an absolute discharge; or, (b) a conditional discharge.  The principal difference is that an absolute discharge takes effect immediately, whereas an offender must complete the conditions of a conditional discharge before the discharge takes effect.  Typically, the conditions will be constituted by a probation order.  And, under subsection 730(4) of the Criminal Code, if the offender fails to complete the terms of the probation successfully, the offender can be convicted of the offence for which the conditional discharge was ordered:

Where an offender who is bound by the conditions of a probation order made at a time when the offender was directed to be discharged under this section is convicted of an offence, including an offence under section 733.1, the court that made the probation order may, in addition to or in lieu of exercising its authority under subsection 732.2(5), at any time when it may take action under that subsection, revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time of discharge, and no appeal lies from a conviction under this subsection where an appeal was taken from the order directing that the offender be discharged.

 

Conditional discharges are more commonly ordered than absolute discharges.  The reason for this is likely obvious: obliging an offender to ‘earn’ the discharge is more palatable to many in society and serves the public interest.

However, as I have observed before (Rory Fowler, “Why are Conditional Discharges not available to Courts Martial in Canada?” (24 March 2022), while absolute discharges were introduced to the military justice system under the Strengthening Military Justice in the Defence of Canada Act conditional discharges were not.  They remain unavailable in the military justice system.

The only type of discharge available in the Military Justice system is an “absolute discharge” under s 208.3 of the NDA:

203.8 (1) If an accused person pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life, the court martial before which the accused appears may, if it considers it to be in the accused person’s best interests and not contrary to the public interest, instead of convicting the accused person, direct that they be discharged absolutely.

 

This is largely identical to subs 730(1) of the Criminal Code, save that conditional discharges are not available.

And this distinction remains puzzling. There is very little offered by way of rationale for this distinction between the civilian military justice system and the military justice system.  Rather, the ‘explanation’ is essentially a bald assertion in the legislative summary for the Bill that:

… Having regard to the best interests of the accused and to the public interest, a service tribunal may direct that an accused person who is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life, be discharged absolutely (new section 203.8(1) of the NDA). These are the same criteria as are provided in the Criminal Code, although the Code also allows for a conditional discharge. (See: Legislative Summary of Bill C-15: An Act to amend the National Defence Act and to make consequential amendments to other Acts).

 

Even the legislative summary invites the logical subsequent question: “OK, conditional discharges are permitted under the Criminal Code, but not within the Code of Service Discipline.  Why not?”

There are likely two reasons why conditional discharges have not been introduced to the military justice system.  One reason that I discussed previously, is that this will discourage Military Judges from using the sole form of discharge available to them.  An absolute discharge, which is a broad application of discretion by the court, requires the offender to establish that such a disposition is (a) in the best interests of the accused; and, if so, (b) not contrary to the public interest.

Those are fairly generalized conditions, which require a bit more clarification.  The judgment in R v Glover, 2015 CanLII 61298 (NL SC), though a trial level judgment in a relatively small jurisdiction, offers a robust summary of relevant judgments concerning absolute discharges across Canada (see paras 46 to 63, in particular).  Similarly, the Manitoba Court of Appeal judgment in R v Foianesi, 2011 MBCA 33 offers a robust explanation of when a conditional discharge may be appropriate.

The antecedent behavior of the accused, including previous convictions, are factors that influence the granting of a discharge.  In other words, the offender must be someone of generally good character.  When considering a discharge, the court should consider a variety of questions, including: Is it necessary to impose a sentence for the purposes of specific deterrence?  Does the offender have prior criminal convictions?  Will a conviction have significant adverse repercussions for the offender that are disproportionate to the offence for which the offender was found guilty?  Were there significant mitigating factors?

These are all questions that pertain to the first part of the inquiry: is a discharge in the best interests of the offender?

The second line of inquiry – whether it would be in the public interest – is not limited solely to the issue of general deterrence, although general deterrence is clearly a factor.  As observed in R v Glover, supra, there is a public interest in giving the offender an opportunity to learn from the experience giving rise to the offence and to retain the ability to pursue future career choices unimpeded by a criminal record and continue to be a law-abiding member of society.  Again, mitigating factors will be relevant, as is markedly reduced blameworthiness on the part of the offender.  Where an offender unreservedly accepts responsibility for the offence, co-operates with the investigation, and/or takes steps to make amends for the harm arising from the offence, the public interest may be served by a discharge.

Arguably, the principal distinction between an absolute discharge and a conditional discharge arises from the former being justified where there is a greater preponderance of factors to support a discharge.  In other words, where there may be factors that support a discharge, but those factors do not present a markedly compelling justification, a conditional discharge will be ordered in order to set conditions for the offender to ‘earn’ the discharge through successful completion of probationary conditions.

But a conditional discharge is not available in the military justice system, which, I suggest, from a practical perspective, markedly reduces the likelihood that a discharge will be imposed.  There have been some notable examples of absolute discharges under military justice:

• R v D’Amico, 2020 CM 2004
• R v Charron, 2022 CM 5016

 

However, these remain rare.  And while discharges will generally be infrequent, one must wonder whether they are rarer in the military justice system than the civilian criminal justice system because Parliament – presumably at the urging of the Office of the JAG – has declined to make conditional discharges available in the former.  I suggest that the rarity in the use of discharges was one of the principal reasons why the more palatable conditional discharges were not included in the reforms of the military justice system a decade ago.

A second likely reason for the exclusion of conditional discharges is tied to the exclusion of probation as a disposition under the military justice system.  After all, without a mechanism to impose probation, it would be difficult to order a conditional discharge that relies upon the completion of a probationary period.

 

Probation

Under the Criminal Code, probation may be ordered as part of a conditional sentence (section 730) or as part of a sentence (section 731).  The conditions of a probation order may be found at section 732.1.

This option does not arise under the military justice system.  Again, the Legislative Summary for the Strengthening Military Justice in Defence of Canada Act (which introduced amendments to sentencing legislation for the Code of Service Discipline, including the refinement of statutory purposes and principles, and new sentencing provisions and absolute discharges) is silent on why the capacity to impose probation was excluded.

Presumably, probation was not included as the chain of command already have significant powers, outside the Code of Service Discipline, to impose conditions on subordinates, including through the use of remedial measures under Defence Administrative Order and Directive 5019-4, Remedial Measures.

However, the problem with that rationale is that it blurs a distinction that is already fairly blurry (and inconsistently applied) between administrative action and disciplinary punishment.  As I have suggested before – and frequently – remedial measures are used as much as an alternative form of punishment (without the same safeguards that are present under the Code of Service Discipline) as they are to correct actual deficiencies in a non-punitive fashion.  (See, for example: Rory Fowler, “The Military Justice System – Use it or Lose it” (17 October 2021)).  We have also seen how compulsory release has been used as a punitive measure regarding decisions by CF personnel that were characterized, by the chain of command, as disciplinary misconduct (i.e., “disobedience of a lawful command”).

The Court Martial Comprehensive Review – Interim Report, dated 21 July 2017 (which was neither a draft nor an ‘interim’ report, notwithstanding the disingenuous nomenclature that has been attached to it when the OJAG was criticized for trying to conceal the report) discussed the absence of probation as a sentencing tool for courts martial.  At chapter 14 – specifically, part 14.3 of the report – the legal officers who conducted the study recommended, as one option for the further modernization of “Punishments, Sanctions and Sentencing”, the mirroring of civilian sentencing options available in the civilian criminal justice system.

In concluding their assessment of this option, they offered that:

It is assessed that, under this option, the provision for probation orders and conditional sentences would likely increase the system’s ability to rehabilitate military personnel who engage in misconduct.

Under this option, it is assessed that the court martial system would be perceived as more intelligible and fair, since all offenders would be liable to the same types of punishments regardless of whether they are dealt within the civilian justice system or the court martial system. [footnotes omitted; emphasis in original]

 

This recommendation was echoed, five years later, in the Third Independent Review of the National Defence Act by the Honourable Morris J. Fish, C.C., Q.C. (see paragraphs 299 to 301 of the “Report of the Third Independent Review Authority to the Minister of National Defence Pursuant to subsection 273.601(1) of the National Defence Act, RSC 1985, c N-5”).

See also the judgement of (then) Military Judge, Lieutenant-Colonel Jean-Guy Perron in R v Ellis, 2009 CM 4007, notably, his concluding observations at paras 54 and 55:

[54]   While it is evident that military judges do not presently have the same sentencing options that are available to civilian judges, it is also clear that the National Defence Act and the present scale of punishment do provide military judges with certain punishments and powers that permit military judges to determine a sentence that – and to paraphrase to words of Lamer C.J. in R.  v.  M. (C.A.), as quoted in Gladue and Proulx – the NDA and the present scale of punishment permit military judges to craft a sentence that is a just and appropriate mix of accepted sentencing goals that also depends on the needs and current conditions of and in the particular community where the crime occurred.  The scale of punishment offers military judges many alternatives to imprisonment and detention, and the National Defence Act permits the sentencing judge to suspend the sentence of imprisonment or of detention.

[55]   Would it preferable that military judges have at their disposal the same sentencing options as Canadian civilian judges?  This issue can be debated at length to determine how similar the military and civilian sentencing regimes should be.  But this issue remains within the realm of policy and does not fall within the ambit of fundamental justice.  It is up to Parliament to decide this issue, not this court martial.

 

Reading between the lines, Military Judge Perron was acknowledging that a court martial is not empowered to change the statutory regime based upon a policy preference.  Even if a statutory provision were inconsistent with the Charter, a court martial – an ad hoc statutory court – would be limited to offering a remedy solely for the matter before it.  A court martial cannot declare a statutory provision of no force or effect, save for the specific matter before it: R v Lloyd, 2016 SCC 13.  Although judicial comity would likely result in similar conclusions in subsequent courts martial: see R v D’Amico, 2020 CM 2022, paras 29 to 41.

I suggest that, if the military justice system does not keep pace with its civilian counterpart – and this need not be identical in evolution, provided that it remains equitably comparable – the military justice system may fall short, in certain circumstances, of being able to satisfy the fundamental principle of proportionality in sentencing.  This is particularly pertinent when prosecutors and other statutory decision-makers exercise broad – and, sometimes, seemingly arbitrary – discretion regarding whether allegations will be prosecuted before civil courts of criminal jurisdiction or courts martial.

Arguably, in Bruyère, the prosecution sought to garb the sentencing process in vestments that were too tight, while the defence proposed attire that was too loose.  As the CMAC observed at the outset of its judgment, each sentence must be custom tailored to match the particular offender and specific offence (see: R v Creighton, [1993] 3 SCR 3, per McLachlin J at p. 375: “… the sentence can be and is tailored to suit the degree of moral fault of the offender”.)

 

Conclusion

I discuss above the merit of including conditional discharges and probationary orders in the military justice system. I have also posited possible reasons why those options were excluded from the military justice system – although we cannot be certain of the specific reasons for that legislative choice.

But why is that relevant to the judgment in R v Bruyère?

I suggest that the judgment in R v Bruyère is illuminating less in relation to the issue of the just and appropriate sentence for Private Bruyère, than where it concerns the limited sentencing options for a Military Judge.

At sentencing, the counsel for the offender argued for an absolute discharge or, in the alternative, a $1,000.00 fine.  In marked contrast, DMP took the position that only imprisonment would have sufficed.  Indeed, on appeal, according to the Court, DMP demonstrated a desire to make imprisonment the ‘minimum sentence’ in the context of the allegations.

I’m not suggesting that an absolute discharge would have been appropriate.  I would have been markedly surprised if the Military Judge had ordered an absolute discharge.  And, having regard to the aggravating and mitigating factors identified by the CMAC (at para 29 of the CMAC judgment), it is difficult to conceive that counsel for the offender would have succeeded in that argument.  A conditional discharge would have been more palatable than an absolute discharge, but it was not, and is not, available to a CF member tried by court martial.  And even a conditional discharge would have represented a conceptual stretch.

Nor was probation available.

Instead, there was a limited scope of options for the Military Judge.  She was essentially limited to:

• A fine (which may be combined with another punishment);
• A reprimand or a severe reprimand;
• Detention or imprisonment.

 

Reduction in rank was not available, as the accused was a private.

And, while a sentence of imprisonment or detention, subsequently suspended under section 215 of the NDA, might bear some similarity to some aspects of probation, it is manifestly and inherently a higher order of punishment than probation.  It is a sentence of detention or imprisonment, notwithstanding any subsequent suspension.  Consequently, artificially elevating a sentence above that which the military judge concludes is just, in order to engineer a facsimile of probation, would be a problematic sentencing choice.

In light of the nature of the offences and the circumstances, the court marital was faced with an offender and offences that could have been dealt with in the civil criminal justice system through the use of a probation.  And that probation would certainly include mandatory courses and/or treatment for alcohol dependency and anger management.  It would likely incorporate restorative justice mechanisms.

But that option was also not available to the Military Judge.

In the narrow reading of the CMAC judgement in R v Bruyère we are left with a well-articulated explanation of the relevant principles of sentencing as well as a summary of the threshold that is necessary for an appellate court to justify interfering with the sentence imposed by a trial judge in the military justice system.  We may, perhaps, be left wondering why DMP appealed the sentence, particularly in the absence of any actual error at law or in principle.  We could speculate that a key driving principle was concern over actual or potential public criticism in the news media.

But, I suggest that the judgment also serves as a reminder that, in the process of civilianizing the military justice system, if certain elements of the civilian criminal justice system are excluded from such reforms, perhaps a more compelling justification is required than a simple assertion that the military justice system is different, combined with rote reliance on the judgments in R v Généreux, [1992] 1 SCR 259 and R v Stillman, 2019 SCC 40 justifying the ongoing existence of the military justice system.

After all, it is abundantly clear that there are many elements that the military justice system has in common with the civilian criminal justice system.