Noonan v AGC, 2023 FC 618 – An unsurprising result and its second-order implications
[By way of disclosure: I was counsel of record for the applicants in the titular proceeding upon which this Blog post is based. This post was also slightly edited on 13 May 2023 to correct minor typographical errors.]
Last week, on 27 April 2023, Justice Zinn handed down his judgment in Noonan v Canada, 2023 FC 618. This judgment arose from two separate applications, heard in concert, as they both addressed the same central theme: whether and when, under the Code of Service Discipline as it existed prior to the amendments introduced through Bill C-77 on 20 June 2022, persons charged with service offences under section 129 of the National Defence Act (NDA) are entitled to an election for trial by court martial.
The central issue revolved around the proper interpretation of article 108.17 of the Queen’s Regulations and Orders (QR&O) – specifically, para 108.17(1)(a) – which has since been repealed by the amendments to the Code of Service Discipline introduced on 20 June 2022.
I won’t offer a detailed analysis regarding the interpretation of art 108.17. Justice Zinn’s judgment is straight forward, and this issue was previously the subject of posts in this Blog:
I do, however, encourage you to read Justice Zinn’s judgment before proceeding with the discussion and analysis below.
The issue that is the focus of the present Blog post is what this matter indicates regarding the current state of the Code of Service Discipline specifically, and the nature of statutory decision-making in the Canadian Forces (CF) generally. More particularly, how does this judgment inform us of the dynamic between CF statutory decision-makers and their legal advisors in the Office of the Judge Advocate General (OJAG)?
Section 162.1 of the NDA and Article 108.17 of the QR&O
While I do not propose to offer a detailed analysis of the interpretation of (the now-repealed) art 108.17 of the QR&O, for the sake of convenience, I will reiterate the relevant portions of the regulation, as well as the statutory provision that it amplifies.
Section 162.1 of the NDA (repealed on 20 June 2022) stated:
Except in the circumstances prescribed in regulations made by the Governor in Council, an accused person who is triable by summary trial has the right to elect to be tried by court martial.
The Governor in Council regulation that prescribed this derogation was art 108.17 of the QR&O:
108.17 – ELECTION TO BE TRIED BY COURT MARTIAL
(1) An accused person triable by summary trial in respect of a service offence has the right to be tried by court martial unless:
(a) the offence is contrary to one of the following provisions of the National Defence Act:
85 (Insubordinate Behaviour),
86 (Quarrels and Disturbances),
90 (Absence Without Leave),
129 (Conduct to the Prejudice of Good Order and Discipline), but only where the offence relates to military training, maintenance of personal equipment, quarters or work space, or dress and deportment; and
(b) the circumstances surrounding the commission of the offence are sufficiently minor in nature that the officer exercising summary trial jurisdiction over the accused concludes that a punishment of detention, reduction in rank or a fine in excess of 25 per cent of monthly basic pay would not be warranted if the accused person were found guilty of the offence. [emphasis added]
Why is this relevant?
One of the first questions that may arise for some observers is: Why is this relevant? After all, the judgment in Noonan concerns the application of a provision of the Code of Service Discipline that was repealed on 20 June 2022, nearly a year ago. Granted, there may be one or two residual matters for which this judgment is relevant; however, the proper interpretation of a repealed provision is largely inconsequential at this point.
The new ‘service infractions’, which came into force on 20 June 2022, do not have retroactive application. They apply only to allegations of service misconduct arising on or after that date. Allegations of service misconduct that pre-date the coming-into-force of service infractions and ‘summary hearings’ would have to be dealt with as ‘service offences’. Service offences are presently tried only by court martial; however, service offences alleged to have arisen prior to 20 June 2022 could be tried by summary trial under the previous Code of Service Discipline regime, provided all relevant jurisdictional requirements were satisfied.
However, the limitation periods relating to summary trials will increasingly mean that allegations of misconduct that pre-date 20 June 2022 will be dealt with solely by court martial (or, frankly, punished under non-disciplinary administrative regimes, which is an all-too-common course of action).
Pursuant to subsections 163(1.1) and 164(1.1) of the NDA (which were also repealed under Bill C-77 on 20 June 2022), an accused person could not be tried by summary trial unless the charge was laid within six months after the day on which the service offence is alleged to have been committed, and the summary trial must commence within one year of the date on which the alleged service offence occurred. Under sections 163(1.2) and 164(1.2) of the NDA (which have also been repealed), the accused could waive that limitation period. (See, also, Note C to art 108.05 of the QR&O in force prior to 20 June 2022.) However, in light of the discussion that follows and the demonstrable aversion of the chain of command (and the OJAG) to permitting accused to elect trial by court martial, I suggest that such waiver is unlikely.
Consequently, there are likely few, if any, summary trials (or reviews of summary trials under (the now repealed) article 108.45 of the QR&O) that are currently before CF decision-makers. There may, however, be applications before the Federal Court that also raise the same issue that was raised in Noonan.
Therefore, since the right to elect trial by court martial under the now-repealed art 108.17 of the QR&O is no longer (or soon-to-be no longer) a material concern under the Code of Service Discipline, why would this judgment be anything more than a curiosity at this point?
Its relevance arises from the rationale advanced by the presiding officers and review authorities in the two Code of Service Discipline proceedings that were the subject of Justice Zinn’s judgment. In both cases, the presiding officers and review authorities indicated that they had legal advice (from the OJAG) that supported their conclusions that the accused were not entitled to an election for trial by court martial.
Those statutory decision-makers did not disclose the nature or content of said legal advice. And, to be clear: the statutory decision-makers were not obliged to disclose advice that falls within the scope of a solicitor-client confidence. However, if that is the sole or principal basis for refusing to offer an accused an election for trial by court martial, absent sufficient explanation for such a refusal, a rote ‘appeal to authority’ or argumentum ad verecundiam is unlikely to provide the kind of transparent and intelligible justification that is required under public law principles. It will fail to satisfy the culture of justification required under Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.
And the role of the OJAG as the guardian of the rule of law – or, perhaps more accurately, the role of the JAG as the superintendent of military justice – is singularly significant in examining this issue.
Role of the JAG and OJAG
Legal advisors in the OJAG do not give legal advice in their own name in the way that a sole practitioner (or even a lawyer in a large firm) might provide. They are institutional legal advisors providing advice within the scope of a statutory regime. And this factor is important in examining the implications of the judgment in Noonan.
The JAG is the statutory legal advisor to the Governor General, the Minister of National Defence (MND), the Canadian Forces, and the Department of National Defence (DND), in matters of military law: (NDA, s 9.1). I know that some legal officers in the OJAG take the position that this means that the CF is a ‘represented party’, represented by the OJAG in a manner consistent with that term being used to describe ‘counsel of record’. I believe that a pertinent distinction can be drawn between a statutory legal advisor and ‘counsel of record’ representing a client. However, for the purposes of the discussion below, it is sufficient to note that the JAG is the statutory legal advisor, in matters of military law, to two persons expressly identified under the NDA (the Governor General and the MND) and two institutions (CF and DND).
This role does not give rise to a derogation from the role of the Minister of Justice and Attorney General of Canada as legal advisor to the Federal Crown and government under the Department of Justice Act (NDA, s 10.1). Moreover, while “military justice” is now defined under the NDA, the term “military law” is not. Presumably, it means more than “military justice”. I suspect that, while the characterization of some issues as falling within “military law” may be uncontroversial, other matters may well raise differences of opinion between lawyers in the OJAG and lawyers in the Department of Justice (specifically, the Office of the DND/CF Legal Advisor) regarding whether it falls within the scope of “military law”.
My central proposition, however, is that Parliament has expressly assigned the advisory duties regarding the Code of Service Discipline (but not only the Code of Service Discipline) to the JAG. Parliament has also assigned the distinct role of ‘superintendent of military justice’ to the JAG (or, Acting JAG, as the case may be). Consequently, the JAG is not just a legal advisor, but has a supervisory role when it comes to “military justice”.
The JAG cannot be expected to perform these roles and these duties by herself (or, in the case of the Acting JAG, himself). That would be unreasonable – and there’s no room for unreasonable decision-making or actions in the CF.
Consequently, under the authority at s 17 of the NDA, the MND has established an “element’ of the CF called the Office of the Judge Advocate General (OJAG) to which legal officers are typically posted. And the OJAG is set apart, arm’s length, from the CF’s typical chain of command. The JAG is responsible to the MND for the performance of her duties and functions as JAG (NDA, s 9.3(1)). The JAG commands the OJAG (QR&O art 4.081(2)). And all legal officers whose duty is the provision of legal services to the CF shall be posted to a position within the OJAG (QR&O art 4.081(1)). (Well, technically, the regulation states: “… posted to a position established within the office of the Office of the Judge Advocate General …”, but, for the purposes of the present discussion, we’ll ignore the repetitive typo in the regulation).
There are a couple of nuances in this arrangement. You’ll note that the direction at art 4.081(1) of the QR&O is not limited solely to legal advice, but, presumably more broadly, to legal services. Second, even though the JAG is the legal advisor to the Governor General, the MND, the CF, and the DND, on matters of military law, art 4.081(1) of the QR&O mentions only the CF. However, these nuances do not significantly impact the analysis that follows.
The implication of this legislative context is that the legal advice given by legal officers in the OJAG to CF statutory decision-makers is given on behalf of the statutory legal advisor to the CF: the JAG. And that legal advice is provided by legal officers who are, by virtue of their posting to the OJAG, at arm’s length to the chain of command whom they advise. (Personally, I would not go so far as to describe the recipients of the legal advice as ‘clients’, as they are merely office holders of the institution – the CF – which is advised by a statutory legal advisor. But I do acknowledge that, in the context of the present discussion, this amounts to splitting hairs regarding a tangential issue.) I hasten to add, however, that this arm’s-length relationship is not necessarily proof against ‘institutional capture’ of those legal advisors.
Consequently, and presumably, there is some effort by the JAG and the senior leadership of the OJAG (specifically, the Deputy Judge Advocates General or DJAG) to ensure consistency of the legal advice given to institutional decision-makers. After all, the Mission of the JAG and OJAG is to “… deliver client-focused, timely, options-oriented and operationally-driven military legal services in support of Government of Canada, Department of National Defence and Canadian Armed Forces priorities and objectives; and, to superintend the administration of military justice in the Canadian Armed Forces while respecting the independent roles of each statutory actor within the military justice system.” That would be difficult to satisfy if legal advice from the OJAG, regarding common subjects or issues, were inconsistent across the OJAG.
And that is reinforced if one examines the ‘Values’ of the OJAG:
The paramount value for the Office of the JAG is teamwork. It will be achieved through the development and sustainment of trust-based relationships. Our personal credibility and behaviour as well as our office demonstrated results, reputation, alignment with clients’ objectives and priorities will foster trust in us, trust amongst us, and trust between our clients and ourselves.
It is difficult to build trust between the chain of command and the OJAG if legal advice on matters that are regularly brought before the chain of command, across the breadth of the CF, is inconsistent based upon the region or locale in which it is provided. Ensuring consistency of legal advice is important in upholding the confidence not only in the Code of Service Discipline (or, if you prefer, “military justice”), but in statutory decision-making under the NDA generally.
After all, if legal advisors in the Pacific Region (i.e., British Columbia) offer notably different legal advice than legal advisors in the Central Region (i.e., Ontario) on issues that are regularly brought before CF decision-makers, particularly where such differences could materially affect the nature of the anticipated decision-making, that dissonance could undermine the confidence that decision-makers, and those subject to their decisions, would have in the exercise of statutory duties, powers, and functions. Again, that is because those legal advisors are not providing solely their own, personal, perspective of the law, but are providing an institutional perspective regarding institutional decision-making.
Therefore, it would not be unreasonable to conclude that the legal advice given to the presiding officers and review authorities in the Code of Service Discipline proceedings discussed in Noonan was a product of institutional advice. In other words, the advice that the accused were not entitled to an election for court martial was not solely the advice of two or three specific unit legal advisors, but was the institutional position of the OJAG and JAG.
And, if that is the case, it raises some concerns regarding the merit of that advice and the role of the JAG and OJAG in ensuring that justice is done (“fiat Justitia”) in the administration of the affairs of the CF. And the motto of the Legal Branch of the Canadian Forces (and, by extension, the OJAG) could be said to reflect the values and mission of the OJAG (in addition to those published on the OJAG website – which has not been updated after 2021).
Fiat iustitia – let justice prevail – is an expression, ultimately, of the focus of the OJAG and what the law should serve.
The motto of the Legal Branch and OJAG is not dura lex sed lex – the law is hard, but it is the law – which is the ultimate tool of a draconian bureaucrat.
Nor is it lex est servus regni – the law serves the Crown – or Rex non potest peccare – the King can do no wrong. More apt would be: Lex non a rege est violanda – the law must not be violated, even by the King. This reflects the proposition that the Crown serves and upholds the law. Consider the declaration and oath by His Majesty, King Charles III, upon Accession on 10 September 2022:
In taking up these responsibilities, I shall strive to follow the inspiring example I have been set in upholding constitutional government and to seek the peace, harmony and prosperity of the peoples of these islands and of the Commonwealth realms and territories throughout the world.
There is a compelling argument that, in military justice, Canadian legal officers must not limit their role to providing advice to the chain of command to avoid breaches of the law. They should strive, collectively, to encourage the institutional recipients of their advice – the DND and CF – to ensure justice for all CF personnel. Moreover, there is a compelling argument that, in the circumstances described in Noonan, the chain of command did, in fact, contravene the law, based expressly upon the legal advice that they received.
The Noonan judgment concerned Code of Service Discipline proceedings involving an NCO (Sgt Noonan) and an officer (LCdr Strecker – himself a legal officer in the OJAG). However, it would be naïve for people to conclude that these two matters represent isolated circumstances in which accused were improperly and unjustly denied an election for court martial. I am aware of other instances over the past few years, in which CF personnel were charged under section 129 of the NDA and were denied an election for court martial because the allegations concerned “deportment” (but not necessarily “dress and deportment”).
And to be clear: not all charges under s 129 of the NDA would have necessarily given rise to an election for court martial.
Art 108.17 of the QR&O lists five service offences for which an election for court martial could, potentially, be withheld. However, if the allegations were sufficiently serious that a presiding officer anticipated that he or she might require powers of punishment that exceed the limitations described at para 108.17(1)(b) of the QR&O – e.g., if the presiding officer was of the opinion that he or she might need to impose a punishment of: (a) detention; (b) reduction in rank; or, (c) a fine in excess of 25% of monthly salary – then an election would have to be offered (even for alleged offences under section 85, 86, 90, or 97 of the NDA).
(However, if we are frankly honest here – para 108.17(1)(b) of the QR&O rarely, if ever, prompted a presiding officer to offer an election for court martial. The practical implication of this provision was that presiding officers understood that their powers of punishment would be curtailed if they wished to refuse to offer an election for court martial. I doubt very much that presiding officers experienced epiphanies along the lines of “Well, I was going to decline to offer you an election for court martial; however, I conclude that this charge of drunkenness is so serious that I feel compelled to offer you an election …”.)
More particularly for charges under s 129 of the NDA, as Justice Zinn observes in his judgment in Noonan, there are circumstances in which the provision at para 108.17(1)(a) of the QR&O legitimately applies. A CF member charged with wearing his or her uniform incorrectly would fall within the description of “dress and deportment”. Similarly, a CF member who failed to maintain his or her workplace in a tidy, presentable, or functioning manner could be subject to a charge under s 129 of the NDA for which an election could be withheld. And a CF member who failed to maintain his or her field equipment in a serviceable manner, could be subject to a charge without election for court martial. However, a CF member charged for making controversial comments, or who is alleged to have harassed another CF member (“… in the workplace …”) and charged under s 129 of the NDA (specifically, by virtue of the ‘deeming’ provision at subs 129(2) of the NDA) for contravening Defence Administrative Order and Directive (DAOD) 5012-2, Harassment Prevention and Resolution, would have been entitled to receive an election for court martial.
I am also aware of circumstances in which CF personnel, accused of multiple Code of Service Discipline offences, including offences for which there is expressly a right to elect trial by court martial, have elected trial by court martial, and have had their charges referred to Director of Military Prosecutions (DMP). Consequently, prosecutors under the supervision of DMP “non-preferred” the “electable” offences and then referred the supposedly “unelectable” offences back to a commanding officer for disposition at summary trial. I discussed this disingenuous tactic previously: Some Observations on ‘Military Justice’ at Summary Trial – Part III, 8 June 2022. In some cases, those supposedly “unelectable” offences involved charges under s 129 of the NDA.
One question that undoubtedly arises in these circumstances is: how many other CF personnel, charged under s 129 of the NDA, were unfairly and unjustly denied an election for court martial based upon a misinterpretation of art 108.17 of the QR&O?
It is not possible for me to answer that question. I suspect that, with moderate effort, the OJAG could identify the number of accused who were charged under s 129 of the NDA and were not given an election for court martial. After all, units of the CF were obliged, under art 107.14 of the QR&O (repealed on 20 June 2022) to maintain a “unit registry of disciplinary proceedings”. Under art 107.15 of the QR&O (also repealed on 20 June 2022), unit commanding officers were required to forward all copies of Records of Disciplinary proceedings to the nearest office of the JAG (typically their unit legal advisor) and that information would be forwarded to, and compiled by, the Military Justice Division of the OJAG. This information is used, among other reasons, for compiling and preparing the JAG Annual Report on Military Justice, an obligation imposed on the JAG by s 9.3 of the NDA.
I suggest that it would be within the capacity of the OJAG to inquire how many accused were charged under s 129 of the NDA, over, say, the past 5 years, but who were denied the right to elect trial by court martial based upon the problematic interpretation of art 108.17 advanced in the summary proceedings of Sgt Noonan and LCdr Strecker.
While the OJAG has the capacity to do so, I have my doubts whether they would have any intention of doing so, particularly if those elections were withheld due to institutional advice from the OJAG.
Certainly, there may be those who would consider any such matters to fall within the principle of res judicata. Like Sgt Noonan and LCdr Strecker, those other accused could have sought review based upon jurisdiction.
But consider what Justice Scanlan held recently in R v Remington, 2023 CMAC 5, when ordering a stay of execution of sentence following an unsuccessful appeal before the CMAC of a matter that was subsequently added to an appeal to be heard by the Supreme Court of Canada (SCC):
 Prior to February 2, 2023, when the Supreme Court of Canada granting leave in Edwards et al I would have said, together with other judges of this Court, have stated the law; the Applicant was convicted by a properly constituted, independent and impartial court. …
 Pending a final decision in Edwards et al this court is in a difficult position. Had leave not been granted I would have focused just on the law as it is at this point saying it is time for the Applicant to serve his sentence. Instead, I must wrestle with the issue of whether this Applicant, in these circumstances, should be released by way of a Stay, pending the determination of the Edwards et al appeal in the Supreme Court of Canada.
 Nothing is absolute when it comes to convictions. In any trial an accused is entitled to a presumption of innocence until the announcement of the verdict by the independent and impartial trier. I am not about to pre-judge this case should it go before another court should that be required.
By depriving accused of their right to trial by court martial based upon a specious interpretation of the law, not only were they deprived of their right as it was entailed at that time, but it could also be applied retrospectively by future interpretation by an appellate or reviewing court.
Consider, also, one of the famous clauses from the Magna Carta of 1215 (reproduced in Magna Carta (1297), Chapter 9, 25 Edw 1 cc 1 9 29, art. XXIX in fine) regarding the Crown’s duty: “40. Nulli vendemus, nulli negabimus aut differemus rectum vel justiciam”, (To no one will we sell, to no one will we deny or delay right or justice).
Why was this advice given?
To be clear: we do not know, precisely, what advice was given to the relevant decision-makers. We principally know the effect: election for court martial was withheld for certain accused, charged under s 129 of the NDA, based upon an unreasonable interpretation of the phrase “dress and deportment” employed in para 108.17(1)(a) of the QR&O. Based upon the limited justifications offered to the accused in Noonan, it appears that presiding officers and review authorities were told that they could withhold election for court martial if the allegations somehow described the deportment of the accused.
(As an aside, since the offence under s 129 of the NDA relates to acts, conduct, or neglect to the prejudice of good order and discipline, the offence inherently relates to deportment, generally. It would be difficult to conceive of misconduct punishable under s 129 of the NDA that did not relate, somehow, to ‘deportment’. Consequently, if all that was necessary to justify withholding an election for trial by court martial was to characterize the alleged misconduct as somehow pertaining to ‘deportment’, then the specific exceptions to the statutory right to elect court martial granted by Parliament, and prescribed in regulation by the Governor in Council for offences under s 129 of the NDA “… only where the offence relates to military training, maintenance of personal equipment, quarters or work space, or dress and deportment …”, would be rendered nugatory. If that was the intent of the Governor in Council, it would simply have listed s 129 in the same manner as the other four service offences.)
We also do not know how many CF personnel were adversely affected by this unreasonable interpretation of art 108.17. Nor do we know when this unreasonable interpretation started to be applied by the OJAG. Anecdotally, it does not appear to have been applied consistently throughout the period from 1999, when the amendments of Bill C-25 came into force, drastically re-shaping the Code of Service Discipline, through to 20 June 2022, when Bill C-77 introduced further significant amendments. Based upon the queries that I have received in my practice, this interpretation appears to have been a relatively recent phenomenon and appears to have arisen, consistently, sometime during or after 2019.
There may be a connection between this interpretation of para 108.17(1)(a) of the QR&O and the judgments arising from the prosecution of Lt Banting: R v Banting, 2019 CM 2008; R v Banting, 2019 CM 2009, aff’d R v Banting, 2019 CMAC 5; see also, R v Banting, 2020 CMAC 2. Admittedly, some of these conclusions are, to an extent, speculative. However, it is not speculation devoid of supporting evidence and, in the absence of any meaningful explanation regarding the plainly disingenuous interpretation of art 108.17 of the QR&O, we are forced to speculate.
2019 was not a particularly successful year when it came to prosecution, before courts martial, of allegations under s 129 of the NDA. There were a series of acquittals where one or more charges were laid under s 129: R v Oladehinde, 2019 CM 2016; R v Tuckett, 2019 CM 3007; R v Anderson, 2019 CM 2034; and the aforementioned R v Banting, 2019 CM 2009. Even where an accused was convicted of one of several charges, DMP was often unsuccessful regarding allegations under s 129: in R v Clancy, 2019 CM 2033, the accused was found not guilty of two of the three charges laid under s 129 (the two charges being alternatives to the other); in R v Beemer, 2019 CM 2029, the accused was found guilty of an offence under s 117(f) of the NDA, but acquitted of the charge under s 129. And, in R v McGregor, 2019 CM 4015, the accused faced multiple charges, including offences under the Criminal Code. While he was found guilty of several of the charges, he was notably acquitted of the charge under s 129 of the NDA.
I suggest that there is a cognitive dissonance regarding the nature of the offence under s 129 of the NDA. To put it colloquially, it appears that CF leadership are of the view that all that is necessary to establish guilt is to prove that an accused did or said something of which the chain of command disapproves. When that subjective approach fails, they become frustrated with what they perceive to be an inadequate or ‘broken’ disciplinary process.
The offence under s 129 of the NDA is, arguably, the single most frequently laid charge under the Code of Service Discipline (at least, up until 20 June 2022). This assertion is supported by the JAG Annual Reports and by 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” by the Honourable Morris J. Fish, CC, QC.
Objectively, in comparison to other service offences, charges under s 129 of the NDA are not more difficult to prove. After all, if a military prosecutor can prove that a CF member has contravened “… any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof …” or “… any general, garrison, unit, station, standing, local or other orders …”, and the prosecutor can prove that the regulations, orders, or instructions were sufficiently notoriously published, the prosecutor can typically rely on the ‘deeming’ provision at subs 129(2) of the NDA.
Moreover, as the Court Martial Appeal Court of Canada (CMAC) held at paras 76 to 79 of R v Golzari, 2017 CMAC 3, the military prosecutor is not obliged to prove a “… physical manifestation of injury to discipline ..” in order to obtain a conviction. Proof of prejudice to good order and discipline can be inferred from the circumstances if the evidence clearly points to prejudice as a natural consequence of the proven act. The standard of proof is, however, proof beyond a reasonable doubt.
The Golzari judgment was amplified in R v Bannister, 2019 CMAC 2, where the CMAC confirmed that it is sufficient to prove that the impugned conduct tends to or is likely to result in prejudice to discipline.
Nevertheless, DMP has experienced difficulty proving allegations under s 129 of the NDA. Those interested in military justice in the CF would be justified in considering why that is.
I suggest that part of the challenge is the manner in which the chain of command views this type of offence. Often, the alleged misconduct prosecuted under s 129 of the NDA amounts to conduct of which the chain of command disapproves, but is not necessarily conduct that is truly, objectively, prejudicial to good order and to discipline. To put it colloquially, the accused did something that his or her chain of command doesn’t like. And if that seems rather subjective in nature, that’s because it is. And that’s part of the problem.
And that is the sort of perspective that gives rise to prosecutions reflected in R v Banting. For example, it was alleged that Lt Banting contravened the Chief of the Defence Staff’s (CDS) direction under Op HONOUR. That is not surprising, since many statutory decision-makers in the CF repeatedly (and incorrectly) justified taking adverse disciplinary or administrative action against subordinates based upon allegations that the subordinate contravened Op HONOUR. The problem was that the statutory decision-makers purporting to ‘enforce’ Op HONOUR clearly did not understand the order that they were purportedly enforcing. As Military Judge, Commander Sukstorf, observed at para 29 of her judgment in R v Banting, 2019 CM 2009:
Notwithstanding this, the CDS Op Order – Op HONOUR is not the type of order envisaged under subsection 129(2). As designed, it is not intended to be relied upon as the basis of a charge. Most noticeably, Op Honour does not provide parameters nor does it create offences. In short, Op HONOUR and its FRAGOs set out clear direction to the chain of command on how to deal with issues of inappropriate conduct in accordance with extant policy and the law. It does not establish new law or policies.
Consider, as well, the judgment of the former Chief Military Judge, Colonel Mario Dutil (a position that the Governor in Council has still not filled) in R v Captain Rafuse, 2007 CM 1008:
 Policymaking and the drafting of regulations and orders are complex. They require a great deal of competence and dedication. It is fair to say that the drafting skills and scrutiny required to make orders should not be equal to the level expected for statutes and regulations; however, when someone may be facing criminal or disciplinary charges for the contravention of a regulation, an order, or a directive, the instrument should speak with clarity and precision. Otherwise, not only is it difficult to apply and enforce the policy, it fails to provide the subject of the policy with sufficient guidance to comply with such a policy.
If the chain of command intends, in effect, to create an offence by creating a policy, that policy direction must be sufficiently clear.
Technically, Op HONOUR did create some new policies; however, the point that Cdr Sukstorf made in Banting was that Op HONOUR did not create any new prohibitions or define prohibited conduct. It comprised the (then) CDS’ direction to the CF chain of command regarding how he expected leaders at all levels to address conduct that was prohibited by virtue of existing legislation or polices.
But how many times have CF personnel been punished – either under the Code of Service Discipline or through the use of administrative measures – for “… contravening Op HONOUR …”? Technically, a contravention of Op HONOUR would have arisen if someone in a leadership position (i.e., a statutory decision-maker) had failed to comply with the direction therein. But a CF member accused of ‘sexual misconduct’ would not have contravened Op HONOUR; rather he (or she) should have been accused of contravening an existing law or policy prohibition. This is an object example of how CF statutory decision-makers do not actually pay attention to the policies they purport to enforce.
But the prosecution of Lt Banting was not solely problematic for its misguided reliance on Op HONOUR as the basis for a purported disciplinary prohibition. The prosecution, and subsequent appeal, by DMP was characterized by the CMAC as an ill-conceived attempt to test the boundaries established by Golzari and Bannister – boundaries that I suggest are not particularly onerous on the prosecution. The CMAC held, at para 28 of R v Banting, 2020 CMAC 2:
That said, we do wish to state categorically that while the prosecution of Lieutenant Banting may not have risen to frivolous or vexatious conduct, we do consider the prosecution and the subsequent appeal, to have been questionable. It is apparent that military commanders and the prosecution intended to use Lieutenant Banting’s circumstances to test the limits of this Court’s reasoning in Golzari and Bannister. Those same commanders and the prosecution chose to use Lieutenant Banting’s circumstances to test the reach of Operation Honour within the military justice context. They chose to pursue the case against Lieutenant Banting in circumstances where a court would eventually conclude there existed no prima facie case and where the Canadian Armed Forces training manual authorized the acronym F.U.C.K. (Fight the fight; Uncontrolled bleeding; Communicate; Keep moving) as a mnemonic device. Based upon the subjective sensibilities of at least one of the perceived “complainants” in this case, that acronym would seem more offensive than any of the double entendres employed by Lieutenant Banting. The test case failed miserably. …
As a result, Lt Banting was awarded costs on appeal.
Thus, while military prosecutors can rely on deeming provisions under the NDA, and reasonable inferences relating to the determination of whether an act, conduct, or neglect is prejudicial to good order and discipline, they still bear a burden of proof beyond a reasonable doubt. They cannot rely entirely on subjective perception. And they must offer more evidence than simply that the chain of command is upset with a subordinate.
I suggest that the CF chain of command was not entirely satisfied with such a state of affairs, particularly if many senior leaders are of the view that they should be able to punish subordinates for doing something controversial or with which the chain of command, subjectively, disagrees. I suggest that this same chain of command becomes frustrated when military judges, presiding over courts martial, insist on holding the Crown, and military prosecutors, to an exigeant, if reasonable, evidentiary burden of proof, and a proper interpretation and application of the law.
Now, ask yourself this: how likely is it that superior commanders, commanding officers, and delegated officers – laypersons, lacking independence or any significant training in the law, and who presided over summary trials – demonstrated even remotely the same sort of scrutiny of the relevant evidence or the elements of this type of offence, compared to military judges?
Arguably, from the perspective of the chain of command, it would be a lot more convenient if charges under s 129 of the NDA did not have to be prosecuted before a military judge at court martial.
The problem, however, was the provision at art 108.17(1)(a) of the QR&O, which gave effect to the (now-repealed) statutory right under s 162.1 of the NDA:
Except in the circumstances prescribed in regulations made by the Governor in Council, an accused person who is triable by summary trial has the right to elect to be tried by court martial.
The right to elect trial by court martial was the express default rule established by Parliament. Presumably, this provision was enacted in order to ensure that the Code of Service Discipline – a penal regime – complied with sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms:
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; …
Although Parliament permitted the Governor in Council to establish derogation from the general default rule, any such derogation must be clear and unambiguous. While art 108.17 of the QR&O was published notoriously, the (apparently, relatively recent) interpretation of this legislation upon which the decision-makers in Noonan relied remains a mystery. Basing such a derogation on a specious legal interpretation that is not published anywhere is problematic. Parliament’s will was frustrated, without Parliament (or the accused) being informed of the full scope of reasons.
It appears that, for approximately 20 years, the exception regarding the right to elect trial by court martial when charged under s 129 of the NDA (“… but only where the offence relates to military training, maintenance of personal equipment, quarters or work space, or dress and deportment …”) was interpreted relatively narrowly, consistent with the interpretation presented by Justice Zinn in Noonan. Specifically, the three types or categories of circumstances were read, consistent with the modern principle of statutory interpretation, “… in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act …”. And, specifically, the category of “dress and deportment” was read conjunctively in the manner described by Justice Zinn: as deportment relating to dress (para 55).
It appears that, at some point in the last 5 years – and based upon anecdotal experience, at some point during, or shortly after, 2019 – a different interpretation of art 108.17(1)(a) of the QR&O emerged in the OJAG. And I contend that this new interpretation was given weight – notwithstanding that it was clearly an unreasonable interpretation of the provision – to avoid having problematic charges under s 129 of the NDA placed before military judges (and courts martial) in which such charges would be scrutinized by independent and impartial decision-makers who had a proper understanding of what was required to prove the offences beyond a reasonable doubt and based upon a proper interpretation of the law.
In other words, frustrated by what it perceived as an overly exigeant burden imposed by military judges and the CMAC, the chain of command sought a justification for withholding the right of an accused to elect trial by court martial when charged under s 129 of the NDA, even when the charge did not fall within one of the categories actually enumerated under art 108.17(1)(a) of the QR&O. And the OJAG appeared to be quite happy to support such an approach, notwithstanding that it failed to follow the modern principle of statutory interpretation.
So why is this important?
Observers of military justice may well wonder why this issue would be relevant now. After all, with the bifurcation of the Code of Service Discipline into ‘service infractions’ tried by ‘summary hearings’ and ‘service offences’ tried by courts martial, the issue of election for court martial is moot.
I could suggest that the issue likely isn’t perceived as moot by anyone who, in circumstances similar to that of Sgt Noonan or LCdr Strecker, was denied the right to elect trial by court martial in the past few years. As I note above, I do not know how many CF personnel were charged under s 129 of the NDA for alleged misconduct that did not fall within the categories enumerated at art 108.17(1)(a) of the QR&O, but were nevertheless denied the right to elect trial by court martial. Certainly, the OJAG has the capacity to identify this number. I would not be surprised at all to learn that several dozen CF members were denied this right over the course of the past, say, 5 years. After all, a brief perusal of the last few JAG Annual Reports indicates the following number of charges under s 129 of the NDA that were disposed of under summary trials:
What are the odds that some of the accused – particularly from 2019 onward – may have been refused the right to elect trial by court martial under circumstances similar to that of Sgt Noonan and LCdr Strecker?
A representative of the Crown or CF might be inclined to reply that anyone denied the right to elect trial by court martial could have done as Sgt Noonan and LCdr Strecker did – they could have sought review under art 108.45 of the QR&O and, if necessary, subsequently sought judicial review before the Federal Court.
I don’t find such a reply to be compelling from an ethical perspective. First, as is clear from Noonan, if I am correct that the OJAG took a consistent institutional position regarding the problematic (mis)interpretation of art 108.17 of the QR&O, a review under art 108.45 of the QR&O would very likely mirror those faced by Sgt Noonan and LCdr Strecker. That would hardly be an independent and impartial review – or even a reasonable review.
True, an accused could still have sought review under art 108.45 of the QR&O as a precursor to an application for judicial review – that would be tantamount to ‘going through the motions’ in light of the inevitability of the outcome. The accused could then spend a considerable sum of money seeking judicial review. And under the costs regime established under the Federal Courts Act, the applicant could recoup a fraction of his or her actual costs.
I contend the availability of judicial review is a particularly weak justification for the reliance on a disingenuous interpretation of a Code of Service Discipline provision. It is tantamount to stating: “We’re going to apply this provision in a transparently unfair fashion until and unless someone forces our hand by seeking judicial review before the Federal Court.” That is hardly consistent with ensuring that justice is done in the administration of the affairs of the CF.
The right to a fair trial must not wait for appeal or extraordinary remedy to be exercised. The same can be said with procedural fairness and the duty to act fairly generally.
Placing the onus on the individual to seek his or her right to a fair trial through a costly extraordinary remedy goes against the principle, mentioned above: “To no one we deny, sell or delay justice”. The Crown should actively support justice. Intransigence could also give rise to the perverse effect that a problematic interpretation would increase the use of extraordinary remedies.
If ‘patriotism’ is the last refuge of a scoundrel, then the justification “If you don’t like it, you can grieve it/seek judicial review” (in the face of actions that are clearly unreasonable or inconsistent with the law) must surely be the penultimate refuge of a scoundrel.
I doubt very much that it fosters trust in the OJAG or trust in the exercise of statutory decision-making under the NDA. And how much does such an approach demonstrate respect for the dignity of all persons, obedience and support of lawful authority, or the characteristics of honesty, integrity, loyalty, and courage?
But the potential that other accused may have been unreasonably and unjustly denied the right to elect trial by court martial is not the principal reason why I raise this issue (though it certainly remains a significant issue).
My concern is looking forward to the future of military justice.
As I note above, the Code of Service Discipline is now bifurcated. I anticipate that we will see a marked drop in the number of charges laid under s 129 of the NDA. After all, those will be prosecuted only at court martial. I anticipate that such charges will often only be laid in concert with other (potentially more serious) services offences, and possibly laid ‘in the alternative’ to other service offences. We likely won’t see many (or any) circumstances where only charges under s 129 of the NDA are prosecuted at court martial.
Similarly, we will likely see a marked drop in charges laid in relation to the other four service offences enumerated at art 108.17(1) of the QR&O: Insubordinate Behaviour (s 85); Quarrels and Disturbances (s 86); Absence without Leave or AWOL (s 90); and Drunkenness (s 97).
Instead, charges will be laid in relation to service infractions, and tried in summary hearings:
The offences under s 86 of the NDA (Quarrels and Disturbances) or s 129 of the NDA (act, conduct, or neglect prejudicial to good order and discipline) are replaced by different infractions under art 120.03 of the QR&O, including:
The last of these infractions, at para 120.03(i), is so broadly worded that it is particularly prone to problematic application.
On its face, para 120.03(i) is not unlike the service offence created under s 129 of the NDA. However, the manner and context in which it will be prosecuted informs the nature of this infraction.
First, guilt will be determined on a balance of probability, rather than the criminal standard, beyond a reasonable doubt. Such a standard is not uncommon in certain regulatory regimes, such as the disciplinary provisions under various types of Police Services Acts. However, a problem that I have observed in the context of the administration of the affairs of the CF is that the lower burden of proof can be (and often is) misinterpreted by the statutory decision-maker.
I have encountered decision-makers who have relied upon a lower burden of proof to base decisions solely on allegations, rather than actual evidence. This is something that I have encountered with alarming frequency in Administrative Reviews under DAOD 5019-2, when senior statutory decision-makers, like Director Military Careers Administration (DMCA), base significant decisions (such as ordering a CF member’s compulsory release) upon a Military Police report summary, rather than actual evidence (e.g., statements from witnesses that are actually evaluated in a manner in which such statements can be tested for reliability and credibility).
More disturbing yet is when statutory decision-makers rely upon a ‘balance of probabilities’ when interpreting a legislative provision. I have encountered statutory decision-makers who have concluded: “On a balance of probability, I have determined that your misconduct warrants a compulsory release.” That conflates a factual determination (i.e., What do I believe occurred based upon evidence evaluated under a burden of proof?) with the subsequent adjudication in which factual determinations are applied to a legislative or policy regime. The latter determination is not predicated upon an evidentiary burden. In most cases, that determination is reviewable based upon a standard of reasonableness.
In other words, it is not uncommon to encounter CF statutory decision-makers who do not fully understand what they are doing when adjudicating matters. And, while I am critical of CF decision-makers who are intransigent or closed-minded, I also recognize that the OJAG has not demonstrated much effort in developing training for senior statutory decision-makers, particularly outside the more narrow confines of the Code of Service Discipline.
Second, and perhaps more significantly, the interpretation of the elements of service infractions will rarely, if ever, be subject to interpretation by independent and impartial decision-makers who are schooled in the law (i.e., judges). Instead, the infractions will be interpreted by lay persons who are not independent or schooled in the law. They might be aided (in some circumstances) by legal officers from the OJAG; however, as I describe below, that is not a guarantor of fairness.
An argument could be advanced that statutory decision-makers in these circumstances benefit from the ‘presumption of integrity’ (See, for example: Cojocaru v British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, paras 14-22). However, the prevailing focus of judgments regarding the ‘presumption of integrity’ concerns independent and impartial trial judges exercising adjudicative functions, rather than an accused’s supervisors (e.g., R v Teskey, 2007 SCC 25). I suspect that counsel for the OJAG and Department of Justice would indubitably argue that such a presumption extends also to impartiality. However, even if such a presumption could be advanced, it remains a rebuttable presumption. Anyone familiar with the Code of Service Discipline, and who is being brutally honest, would likely acknowledge that there is a tendency on the part of Officers Conducting Summary Hearings (OCSH) to lean toward guilt of the accused before them, notwithstanding the presumption of innocence.
Plus, we cannot assume that discretionary power will always be used fairly. This is particularly true where the OJAG’s ‘institutional interpretation’ is effectively immune from meaningful review. Consider what the SCC held in R v Nur, 2015 SCC 15, relying on R v Bain,  1 SCR 91, 103-104:
 Two further objections may be raised against the argument that prosecutorial discretion can cure a sentencing provision that violates s. 12 of the Charter. The first is that one cannot be certain that the discretion will always be exercised in a way that would avoid an unconstitutional result. Nor can the constitutionality of a statutory provision rest on an expectation that the Crown will act properly: Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61,  3 S.C.R. 209, at para. 45. As Cory J., for the majority, stated in R. v. Bain, 1992 CanLII 111 (SCC),  1 S.C.R. 91, at pp. 103-4:
Unfortunately it would seem that whenever the Crown is granted statutory power that can be used abusively then, on occasion, it will indeed be used abusively. The protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control. Rather the offending statutory provision should be removed.
Under the previous version of the Code of Service Discipline, the ‘election for court martial’ was a significant factor that kept the process honest. Technically, the standard relevant to pursuing a prosecution is a “reasonable prospect of conviction”. I have described this standard before. It is not particularly onerous. However, where there is a possibility of election for court marital, charges are typically laid and pursued only when the person reviewing the charges was reasonably confident that the evidence would withstand this degree of scrutiny. If there was a possibility that charges could be referred to court martial, prosecutors and the legal officers advising charge layers and the chain of command would be conscious of the fact that the evidence and merits of the charges would be subject to challenge by defence counsel and review by military judges. That is one of the reasons why the unjust and unreasonable withholding of such an election, as in Noonan, was so problematic.
In light of the absence of any truly arm’s length scrutiny, there is a very real risk that infractions, such as those at para 120.03(i) of the QR&O, will be interpreted, to put it colloquially, in the following overly-simplistic manner: If the accused did something with which his (or her) chain of command is displeased, then the accused must be guilty.
I suspect that proponents of the new summary hearing process would be quick to observe that the legal advisors in the OJAG – who are, arguably, arm’s length from the chain of command – can ensure compliance with the relevant legal principles and requirements. I am not reassured.
I would agree that legal advisors in the OJAG are, institutionally, at arm’s length from the chain of command. That helps with the integrity of such legal advice. However, there are at least two shortcomings that give me pause.
First, under para 121.07(b) of the QR&O, a commanding officer (or an officer to whom a commanding officer has delegated the power to conduct a summary hearing) – i.e., an OCSH – must seek legal advice from the unit legal advisor only “… if the charge concerns a person against whom a service infraction is alleged to have been committed or who is alleged to have suffered physical or emotional harm, property damage or economic loss as a result of the alleged commission of the infraction.”
I suspect that some unit legal advisors would be quick to suggest that it is his or her personal policy to advise OCSH on all charges for alleged service infractions, not just those that are obligatory under art 121.07. That’s swell; however, that depends, in part, on whether the CO or OCSH actually consults with his or her legal advisor in circumstances that are not captured under para 121.07(b) of the QR&O. From my perspective, if the desired approach from the OJAG is for CO and OCSH to seek legal advice in all circumstances, then the relevant regulation should oblige such requirements. If the regulations do not describe such a requirement – as is presently the case – then it doesn’t really matter if a particular unit legal advisor has a personal preference, since it is not an enforceable obligation.
In comparison, when a CF member seeks review under Chapter 124 of the QR&O of a determination made, or sanction imposed, by an OCSH, the review authority is obliged to obtain legal advice (para 124.02(b) of the QR&O). It appears that this applies to all reviews.
However, in light of what transpired in Noonan, even if all OCSH were obliged to obtain legal advice regarding all summary hearings, I would still not be reassured.
The consistent (mis)interpretation offered by the presiding officers and review authorities whose decisions were the subject of the Noonan judgment demonstrates a noteworthy degree of institutional capture by the OJAG.
While I do not know the full extent of the legal advice that was offered to these decision-makers, what is clear is that, based upon the interpretation of art 108.17 of the QR&O upon which they relied, the decision-makers expressly indicated that the accused in those matters were not entitled to an election for court martial. The decision-makers adopted, and re-asserted, this position even in the face of comprehensive argument offered to them regarding the proper application of the modern principle of statutory interpretation. And that argument expressly presented the only reasonable interpretation of art 108.17 of the QR&O regarding when an election for trial by court martial must be offered to a CF member charged with one or more offences under s 129 of the NDA.
The problematic interpretation of art 108.17 of the QR&O was maintained by CF decision-makers throughout the review process and even before the Federal Court. And we must remember that, on such applications for judicial review, the Federal Court is inclined to grant deference to the statutory decision-makers (albeit, within the context of the ‘culture of justification’ espoused in Vavilov). These decisions were not reviewed on a standard of correctness, but on the more deferential standard of reasonableness.
I will be blunt: a compelling argument can be made that the OJAG provided the legal advice that the chain of command wanted to hear, not what they needed to hear.
When purporting to punish subordinates who allegedly failed to comply with obligations allegedly imposed on those subordinates, the CF statutory decision-makers responsible for the administration of military justice blatantly failed to follow the rules themselves. That’s not just unfortunate, unreasonable, or problematic. It is blatantly hypocritical. They failed to comply with Ethical Principle #3 of the Department of National Defence and Canadian Forces Code of Values and Ethics “Obey and support lawful authority”:
At all times and in all places, DND employees and CF members shall uphold Canada’s parliamentary democracy and its institutions by:
3.1 Respecting the rule of law.
3.2 Carrying out their duty and their duties in accordance with legislation, policies and directives in a non-partisan and objective manner.
While I have encountered circumstances in which junior CF personnel have been punished using administrative mechanisms for purportedly contravening this principle (enforced under DAOD 7023-0 Defence Ethics and 7023-1 Defence Ethics Programme), I doubt very much that any of the decision-makers or legal advisors who supported the problematic decision-making that led to the application in Noonan will face any such consequences.
And the fact that the accused in Noonan were obliged to seek judicial review in order to challenge what was clearly a problematic interpretation of art 108.17 of the QR&O diminishes my confidence that the rule of law will be respected in the administration of summary justice within the Military Justice at the Unit Level (MJUL).
 The Attorney General of Canada has 30 days to consider whether he will seek appeal of Justice Zinn’s judgment: Federal Courts Act, RSC 1985, c F-7, s 27(2).
 Upon coming into force if various provisions of Bill C-77, the definition of “military justice” was inserted into s 2 of the NDA: “military justice means all aspects of the application of the Code of Service Discipline”. One might be inclined to ask why Parliament did not simply replace the term “military justice” in section 9.2 (and any related provisions) with the term “Code of Service Discipline”. I have observed, previously, that this sleight-of-hand regarding the term of art “military justice” appears to have been driven largely by the overly narrow definition that the OJAG applied to the term for over two decades, and that the amendment under Bill C-77 appears to have been intended to validate this overly narrow definition. As we can observe in the Noonan judgment, sometimes the OJAG adopts particularly large and liberal interpretation of legislative terms of art. The choice between ‘large and liberal’, or narrow and constrained’ can appear to be arbitrary.