Political Interference was the cause of delay, not the military justice system

 

I fear that the Canadian public is being sold a bill of goods.

The Canadian public is being told that the military justice system is bad – bad for victims and bad for justice.  (Although no one seems to be particularly concerned about whether it is ‘bad’ for the accused.)

The Canadian public is being told that the military justice system was the cause for unreasonable delay in the prosecution of criminal allegations in a matter that was recently stayed by a judge of the Ontario Court of Justice.

The Canadian public is being told that other cases could fall apart if the National Defence Act (NDA) is not amended quickly.

But that is a half truth.

There are facets of the military justice system that are inefficient and problematic, and those problems should be corrected.  But there are also problems with the civil criminal justice system that people conveniently ignore.

Recently, the CBC (and other news media) reported on the fact that a prosecution for sexual assault, brought before the Ontario Court of Justice, was stayed due to unreasonable delay, which infringed the accused’s right, under s 11(b) of the Canadian Charter of Rights and Freedoms (Charter), to be tried within a reasonable time.  And that stay, though imposed by the presiding judge in accordance with the law, represents a lost opportunity for a full hearing of allegations on their merits.  It represents a lost opportunity for justice.

But that stay of prosecution was not the fault of the military justice system, or the fact that the military justice system has concurrent jurisdiction over allegations of sexual assault.

As suggested in the judgment from Justice Richardson, the judge of the Ontario Court of Justice who presided over the matter, the fault lies principally with civil prosecutors who took too long to schedule and conduct the trial.

But the fault also lies with political interference, and the Canadian Forces (CF) decision-makers who permitted politicians to interfere with the functioning of the military justice system.

Beware being sold a bill of goods.

 

The judgement has not yet been published

On 11 September 2023, the CBC reported that, on 18 August 2023, Justice Jeffrey Richardson stayed the prosecution of allegations of sexual assault against the accused, who was not named in the on-line news article.  Justice Richardson stayed the prosecution due to excessive delay, which infringed the accused’s right to trial within a reasonable time.

Normally, when these matters are reported in the national news media – particularly where there appears to be selective reporting of the relevant facts and law – I prefer to offer informed and objective commentary in a timely fashion.  However, in order to offer that informed commentary, I prefer to review the actual judgment from the court, rather than rely upon the (often selective) information provided in the news media.  In other words, I prefer to go to the source, rather than rely upon indirect and incomplete information.

That can give rise to tension between my desire to offer timely commentary and my desire to offer informed commentary.

Therefore, rather than respond to what I viewed as problematic commentary, I chose to wait a day or two (or six) in the hope that the judgment would be published on an open-source database, such as CanLII, which I could then, in turn, hyperlink in this blog, so that readers could view the judgment for themselves.  In fact, I even searched academic databases in the hope that they may have the judgment when CanLII did not.

Unfortunately, as of 1800 hrs, 17 September 2023, I was unable to locate the relevant judgment in order to share it with you, Dear Reader, as part of the discussion regarding whether the military justice system is to blame for this delay.  It is also awkward to refer to the relevant prosecution, as the news reports do not offer the ‘style of cause’ (i.e., the name of the case), which is the means by which lawyers typically identify a specific judgment.

It is also not clear if there is a publication ban regarding the judgment – although I suspect that, if there were a publication ban, it has subsequently been removed, permitting the complainant to express her concerns to the CBC, and for the CBC to publish those comments.  That said, I do note that the CBC rather assiduously avoided mentioning the name of the accused.

That said, even relying upon the information that is reported on this matter by the national news media, there is little or no support for the contention that the fault for this delay lies with the fact that the military justice system – the Code of Service Disciple – has concurrent jurisdiction over allegations of sexual assault alleged to have occurred within Canada.

 

A stay of prosecution can frustrate justice, but is nevertheless sometimes necessary to uphold the rule of law

A stay of prosecution is a relatively rare from of remedy for an infringement of a right under the Charter.  It is typically only granted in the clearest of cases, and where no lesser remedy is feasible.  A stay will bar the adjudication of allegations on their merits.  When a stay is ordered, it can frustrate the administration of justice. It is not a decision that a judge or court makes lightly, and it requires compelling circumstances for a judge to impose this remedy for contravention of the Charter.  Judges can be understandably reluctant to order a stay of prosecutions and, I suggest, will endeavour to find viable reasons to avoid imposing such an outcome.  Therefore, when a judge stays a prosecution for delay (or any other Charter infringement), it may be viewed as a last resort measure to correct actions by Crown that fail to comply with the rule of law, including the supreme law of the land (i.e., the constitution of Canada).

The frustration expressed by the complainant, Arianna Nolet, in the CBC report is understandable and most Canadians will likely sympathize with her concerns.  I certainly do.

Unfortunately, some stakeholders, including reporters covering the matter, seem intent on laying the blame for this outcome at the feet of the military justice system and, more specifically, the fact that, since 1999[1], the military justice system has had jurisdiction over allegations of sexual assault, where the offence is alleged to have occurred in Canada.

That is a misguided, even disingenuous, conclusion.

As Justice Richardson observed in his judgment (at least, to the extent that his judgment is described in recent news reporting), the principal fault for this delay lies with the civil prosecutors who failed to bring the allegations to trial in a reasonable amount of time.  The fault for this delay also lies at the feet of political actors who have interfered with the functioning of the military justice system and the CF decision-makers who permitted them to do so.

An no amount of selective reporting or commentary will alter that glaring truth.

 

Where does the fault lie?

Ultimately, the delay in the prosecution of this matter was attributable to the Crown – the civilian Crown – prosecuting the allegations.

Unfortunately, there appears to be an ongoing attempt to blame this outcome on the fact that the military justice system has concurrent jurisdiction for criminal offences, including sexual assault.

Note the selective citation from Justice Richardson’s judgement in recent reporting:

“… What really bothers me in this case is that the case came into the Ontario court from the military court, for whatever reason,” said Richardson, according to the court transcript.

“There is a ton of literature. A ton of it. About how the military court is unfit to hear cases of sexual assault. And here we are.”

 

On its face, this selective quote might appear to be a criticism of the military justice system.  However, I suggest that, taken in the broader context of what transpired, that is not the true nature of Justice Richardson’s comment.

And, as an aside, I would be tempted to challenge the suggestion that there is a “ton of literature” establishing that the military justice system is unfit to hear cases of sexual assault.  What we have, in reality, are repeated assertions, voiced over and over by the same select advocates and stakeholders, relying on the same limited source material, often excluding any evidence that might suggest that their assertion may not be as compelling as they suggest.

On the contrary, one might turn to the studies, back in the 1990s, that led to the amendment of s 70 of the NDA in order to permit prosecution of sexual assault, alleged to have occurred in Canada, under the Code of Service Discipline.  25 years ago, there was a hue and cry that the CF required jurisdiction over allegations of ‘domestic’[2] sexual assault.  This was backed up by ‘independent’ studies commissioned by the government of the day.  Now, a generation later, various stakeholders are criticizing this jurisdiction and attempting to suggest that the existence of this jurisdiction is the reason why sexual misconduct has not been addressed adequately.  We seem to have come full circle.

I suggest that, objectively, the point that Justice Richardson was making was that it is ironic that select advocates repeatedly assert that the military justice system is supposedly unfit for purpose, even though it was the civil criminal justice system that failed, in this circumstance, to proceed in a timely fashion.

The civil prosecutor also tried to rely on the COVID-19 pandemic to justify delay.

There is more than a little irony in the fact that the military justice system, and courts martial that try serious allegations such as sexual assault, adapted to the COVID-19 pandemic more quickly than civil courts.  Early in the pandemic, courts martial adopted ‘virtual’ hearings for many of their processes, including trials, and did so more quickly than many of their civil counterparts.  [Nevertheless, I have previously discussed the capacity of the Chief of the Defence Staff (CDS) to interfere with the convening of courts martial, and the potential impact that this might have regarding the independence of military judges: CDS-Imposed Limitations on Convening Courts Martial, 22 May 2020.]

Where a person is charged with an offence in the criminal justice system or the military justice system, the accused has a right, under s 11(b) of the Charter, to trial within a reasonable period of time.  That ‘clock’ starts when the accused is charged with the relevant offence(s).  While there have been previous formulas for determining whether there is unreasonable delay in a prosecution (e.g., R v Morin, [1992] 1 SCR 771 [Morin]), the most recent guidance from the Supreme Court of Canada (SCC) was R v Jordan, 2016 SCC 27 [Jordan], in which the SCC established thresholds of 18 months for matters that do not involve preliminary hearings and 30 months for those that do.[3]  This is not an inflexible threshold.  Delay attributable to the defence is not included in the calculation.  And the framework can account for exceptional circumstances (such as a world-wide pandemic).

Not surprisingly, courts martial adopted a similar framework following the judgment in Jordan.  In R v Thiele, 2016 CM 4015 [Thiele], Commander Pelletier, a military judge, held that the 18-month presumptive ceiling in Jordan should be adopted in the military justice system.  The Thiele judgment fell within the transitional period between cases that were decided based upon criteria from Morin, and the subsequent framework in Jordan.  In Thiele, the Director of Military Prosecutions (DMP) argued that the framework in Morin should be applied, not that of Jordan.  The defence argued that the Jordan framework (established by the SCC only three months before the hearing in Thiele) should apply.  Commander Pelletier applied the Jordan framework, but held that the applicable delay in that case did not surpass the presumptive 18-month threshold. He also concluded that, even under the Morin framework, a stay would not have been justified.

In R v Cubias-Gonzalez, 2017 CM 3003, Lieutenant-Colonel d’Auteuil, who is now the Acting Chief Military Judge, presented an analysis of pre-Jordan judgments at court martial that dealt with delay under section 11(b) of the Charter and also concluded that the 18-month threshold in Jordan was appropriate for courts martial (which do not have preliminary hearings).  Lieutenant-Colonel d’Auteuil ordered a stay after concluding that the overall delay in the trial, excluding any delay attributable to the defence, was 19 months.

It is uncommon – I would even suggest rare – for applications for stays of prosecution, due to alleged infringement of an accused’s section 11(b) Charter rights, to succeed in either the civil criminal justice system or the military justice system.  In the 7 years or so since the SCC handed down its judgement in Jordan, I can point to two such applications that have succeeded at court martial.  One of those – R v Captain Stacey, 2019 CM 3017 – was rife with other procedural problems which I have discussed previously.  In all likelihood, had the application for a stay due to delay failed, the defence would have had a compelling argument for abuse of process.  The other matter in which a stay of prosecution was ordered was the above-mentioned R v Cubias-Gonzalez, in which the ‘discounted’ delay still exceeded the 18-month threshold directed in Jordan.

 

A bit of a tangential discussion regarding pre-charge delay …

For over 30 years, the courts – particularly the SCC – have consistently (more or less) held that pre-charge delay is not included in the calculation of delay in relation to the right to trial within a reasonable time under s 11(b) of the Charter.  In R v Kalanj, 1 [1989] 1 SCR 1594, the SCC held that the meaning of the term “charged with an offence” in s 11 of the Charter refers to the time at which an Information is sworn (i.e., when a charge is laid).

Even though pre-charge delay is routinely excluded from the calculation of delay under section 11(b) of the Charter, it has an impact on justice.

There have been rare circumstances in which pre-charge delay has been factored into the calculation of delay, including in the military justice system.

For example, in the (pre-Jordan) judgment R v Perrier, [2000] 6 CMAR 189, the Court Martial Appeal Court of Canada (CMAC) upheld a stay of prosecution ordered by a military judge for a breach of both section 7 and para 11(b) of the Charter.  Based upon the content of this judgment, it appears that the military judge’s conclusion was drawn in relation to both Charter rights without clearly distinguishing between the two.  On appeal, the DMP argued that a distinction must be made between a breach of s 11(b) of the Charter, in which case the stay of proceedings has generally been held to be the only possible remedy, and the remedy consequent to a breach of the s 7 rights, in which case a stay of proceedings should be imposed only in the “clearest of cases” – which tend to be the most extreme examples of delay.  DMP also argued, therefore, that a distinction must be made between analysis under section 7 and para 11(b) of the Charter.  While there was merit to this DMP argument, the CMAC did not appear to resolve this issue when upholding the military judge’s order.

The CMAC judgment in Perrier was applied by a civil court of criminal jurisdiction in Ontario in R v Ward, 2015 ONSC 83.  Note that this judgment, too, predates Jordan.  Trooper Ward was charged first under the Code of Service Discipline.  However, it appears that military authorities took a lackadaisical approach to the Code of Service Discipline process while administrative processes proceeded in parallel.  These administrative processes, which were pursued with greater vigour, resulted in the compulsory release of Trooper Ward from the Canadian Forces under an ‘administrative’ regime.  Does that sound at all familiar to readers of this Blog page?  [NB: The court uses the improper term “discharge” to describe a compulsory release.  I have addressed the improper use of this term in a previous blog.  However, from time to time, that incorrect term creeps into judgments.]

In Ward, the judge reviewed key military jurisprudence, acknowledging that pre-charge delay does not generally apply to delay under s 11(b) of the Charter; however, the judge also acknowledged that “… in the military context, the situation is not as clear …” (Ward, para 12).

The judgment in Ward can be contrasted with another pre-Jordan judgment from civilian courts adjudicating allegations against CF personnel: R v K.E., 2013 ONCA 175.[4]  The Ontario Court of Appeal considered pre-charge delay regarding a matter that was transferred to the civil criminal justice system in the wake of a CMAC judgment in R v Trépanier, 2008 CMAC 3 [Trépanier].[5]  The impact of the CMAC judgment in Trépanier posed a risk of shutting down the court martial process. The panic within the military justice system that ensued led to the Ontario Court of Appeal to conclude, in R v K.E., that the Trépanier judgment “… effectively shut down the then existing system of military prosecutions …”.

In R v K.E., the Court of Appeal rejected the appellant’s contention that pre-charge delay in the military justice system should have been factored into the s 11(b) analysis, and also expressed some skepticism about whether it was even correct to calculate delay for the purposes of s 11 (b) of the Charter as running from the charge date in the military system as opposed to the charge date in the civilian system.  See in particular paras 20 thru 23.

One possible point of distinction between Ward and R v K.E. – but which was not expressly explained since Ward did not cite the earlier ONCA judgment – is that R v K.E. was transferred to the civil criminal justice system because the judgment in Trépanier left military prosecutors no other feasible choice.  In Ward, the transfer to the civil criminal justice system was discretionary and appeared to have been pursued because military prosecutors had “dropped the ball” in the prosecution under the Code of Service Discipline.  One is left to question whether they were attempting to ‘re-start’ the ‘Jordan clock’ by commencing a prosecution within the civil criminal justice system.

Civilian courts and courts martial have demonstrated marked reluctance to include pre-charge delay within the calculation of delay in relation to s 11(b) of the Charter: R v Master Corporal W. (T.S.), 2017 CM 2012; R v Master Corporal Tuckett, 2019 CM 3006.  However, the seeming hardline regarding the exclusion of pre-charge delay may not be as inflexible as some of these judgments suggest: see R v Luoma, 2016 ONCJ 670, paras 29 and 31 and R v Milani, 2014 ONCA 536, paras 47 to 49, per Van Rensberg JA.

What these judgments tend to signal is that specific circumstances in individual cases may influence how delay is calculated, particularly where they may appear to be chicanery by Cown decision-makers.

 

Back to the case at hand …

The problem in the case recently described in the national news media was the 29-month delay in getting the matter to trial.  That is 11 months over the threshold established in Jordan.  And it does not appear that the accused/applicant relied upon pre-charge delay to demonstrate excessive delay.

And the source of that delay was not the concurrent jurisdiction that the military justice system has over criminal offences, including sexual assault.  As I discuss below, in addition to the delay by the civilian prosecutors, if delay arose within the military justice system, then any inclusion of that delay in the calculation presented by Justice Richardson would have arisen from the interference from political actors, and that blunt reality that CF decision-makers permitted such interference.

Had military prosecutors proceeded with prosecution of allegations investigated by military police, it is unlikely this delay would have arisen.  After all, as I have mentioned previously, the workload for military prosecutors is not particularly onerous, and the court martial calendar is not overly burdened.

According to Ms Burke, who presented the news report from the CBC, people whom she has interviewed have suggested that the prosecution would have proceeded if allegations went directly to civilian police.  However, such assertions appear to ignore the fact that the complainant in a criminal allegation is the first decision-maker in that process.  It would have been open for a complainant to report such allegations to civilian police.

Similarly, it is also problematic to suggest that, if the allegations are reported to the military police, inordinate time will be lost when the military police have to find civilian police to take over the case.  That assertion ignores the fact that military police continue to investigate such allegations without transferring the investigation to civilian police.  As recently as this summer, military police have continued to investigate allegations of sexual assault and have laid charges before civil courts of criminal jurisdiction.

In effect, certain advocates and stakeholders are stretching the facts, often to an unreasonable extent, to fit their desired outcome: a criticism of the military justice system.

I suggest that the direction from the previous Minister of National Defence (MND), Anita Anand, is the source of many of these difficulties.  It has created a problematic fiction that some CF decision-makers have twisted themselves in knots to try to justify.

We are told that allegations of offences of a sexual nature arising in the context of the CF are now being investigated by civilian police.  That is not always the case.  Some complainants still bring allegations to military police, notwithstanding that rather public nature of Minister Anand’s direction in November 2021.  I suspect that there are several reasons why complainants may continue to bring such allegations to the attention of military police.

In some instances, the complainants may be referred to civil police.  Or the military police may liaise with civil police in order to transfer the investigations to them.  However, despite the assertions to the contrary, the military police – specifically the Canadian Forces National Investigation Service (CFNIS) – are still investigating allegations of sexual assault and other criminal offences of a sexual nature.  They are also still laying charges in some of these matters.  Sometimes, perhaps even most times, they lay charges by way of information before civil courts of criminal jurisdiction.  And in some cases, the charges are laid under the Code of Service Discipline.

I will say this: it does appear to be rather arbitrary whether charges are investigated by civil police or military police.  And it does seem rather arbitrary whether allegations will be prosecuted before civil courts of criminal jurisdiction or courts martial.  Such perception of arbitrariness is not surprising in light of the lack of transparency in the relevant decision-making.

That said, there is little evidence to support the contention that the concurrent jurisdiction of the military justice system over criminal offences (including sexual assault) is the cause of delay infringing an accused’s right to trial in a reasonable period of time.

Certainly, as I have observed in the past, there has been a history of military police ‘front-loading’ delay in their investigations.  Specifically, prior to the past couple of years, there was a tendency for the CFNIS to take several months to complete investigations of serious matters such as sexual assault.  Such investigations routinely took, 6, 9, or 12 months – or longer – before charges were laid.  In comparison, investigations by civilian police may be measured in weeks, or even days.  As I have acknowledged before, sometimes the military police face obstacles such as geographic dispersion of witnesses or other factors that may lengthen the time for investigation.  However, 9 or 12 months to investigate a matter with only 4 to 6 witnesses (or fewer) does seem to be prohibitively long.

Often, in the past, when matters were investigated with the intent of prosecuting the allegations under the Code of Service Discipline, the military police would arrest the accused early in their investigation.  They would not charge the suspect, principally because they were not obliged to charge the suspect in order to place conditions on him/her/them.  Typically, if the suspect was arrested, and held, under the Code of Service Discipline, the suspect would be released by a Custody Review Officer and would be subject to restrictive conditions that could be enforced under the Code of Service Discipline. Beach of such conditions could lead to being charged with further Code of Service Discipline offences (which could, potentially, generate a criminal record).  However, since the accused was not charged, the ‘clock’ would not start in relation to delay under section 11(b) of the Charter and Jordan (and, before Jordan, Morin).

Of course, such delay would still have an adverse impact on the accused.  It could affect the accused’s ability to offer full answer and defence.  It could, and often did, have an adverse impact on the accused’s service in the CF.  It could even have an adverse impact on the accused’s mental health, particularly if the accused was already suffering from mental health trauma.

Such delay would also have an adverse impact on the complainant.  Pre-charge delay nevertheless delayed the adjudication of the allegations, and the closure that it would bring for the complainant.  It could have an adverse impact on the complainant’s mental health and sense of security.  And significant delay could also reduce the quality of the evidence presented at trial as it could impact the complainant’s recollection of details when, and if, the matter was eventually brought to trial.

And, obviously, excessive delay would affect everyone’s confidence in the military justice system.

However, pre-charge delay is not the problem that arose in the matter that was the subject of recent reporting.  That is not why the prosecution was stayed.  Nor was the prosecution stayed because of the concurrent jurisdiction of the military justice system.  It was stayed because civil prosecutors did not bring the allegations to trial in a timely fashion.  It was stayed because the MND ordered that all such prosecutions must be transferred to civil prosecutors and civil courts of criminal jurisdiction.  And DMP – who is purportedly an independent prosecutor – acceded to this political direction.

Hence, I return to the point that Justice Richardson made in the portion of his judgment cited by Ms Burke: despite the repeated assertion that the military justice system is not fit for purpose, it was the civilian criminal justice system that frustrated the complainant’s search for justice.

But for the intervention of the MND – and DMP’s acquiescence – military prosecutors could have proceeded with the prosecution of these allegations before court martial.  Had that been done, it would appear that the participants in that process would not have faced the same significant delay.

In the absence of a published version of Justice Richardson’s judgment, we are obliged to rely upon what has been reported in the news media.  Consequently, I suggest that there are a couple of different conclusions that could be drawn regarding the delay cited in the recent CBC report.

First, let’s proceed with a few simple calculations.

We are told that this matter was transferred to civilian prosecutors in December 2021.  Justice Richardson’s judgment regarding delay was apparently delivered orally on 18 August 2023.  A written version of that judgment may have been provided to the Crown and defence counsel.  However, to my knowledge, it has not been published on any open-source platform such as CanLII.  That accounts for approximately 20 months, two months in excess of the Jordan limit.

The civilian Crown argued that the exceptional circumstances presented by the COVID-19 pandemic should be factored into the calculation of delay.  According to the CBC, Justice Richardson replied: “I don’t see anyone giving more than 90 days credit for COVID-19 …”.

The astute among you would likely calculate that, if three months were subtracted from the 20 months of delay, the resulting delay would be 17 months, which falls below the Jordan threshold.

However, Justice Richardson referred to 29 months of delay.  It is not clear whether this includes, or excludes, the “90 days” that could be attributed to the COVID-19 pandemic.  I will give the Crown the benefit of the doubt and assume that it does not include this 3-month reduction in total delay.  (If the delay is 29 months after reducing delay by 90 days, then that is indicative of 32 months delay overall.)

I suggest that this gives rise to at least two likely reasons for the calculation of 29 months of delay.  Either the matter was not ready for trial in August 2023, when the application regarding delay was heard, or the charges were laid against the accused under the Code of Service Discipline several months before they were then transferred to the civilian criminal justice system in December 2021.  I will explain each possibility in turn.

First, applications for delay are not always heard by the court concurrent with the trial of the allegations on their merits.  Some trials are relatively short, taking only a day or two to present evidence and argument.  Some trials are longer, taking a few days.  The longer the amount of time required for a trial the more difficult it can be to schedule the trial, which can affect delay.  Conversely, an application in relation to delay under s 11(b) of the Charter can take comparatively less time, particularly where the relevant facts (which are generally limited to procedural steps following the arrest and charge of the suspect) can be presented via an ‘agreed statement of facts’ or by affidavits.  Such an application can be heard in a hearing of four hours or less.

Consequently, it is possible that the hearing before Justice Richardson regarding delay was heard several months before the trial on its merits was scheduled.  In such a circumstance, which is not uncommon, the calculation of delay will encompass the time up to the anticipated end of the trial, to the point that a determination regarding guilt is expected to be made.

Alternatively, the hearing regarding delay may have been conducted at the start of the trial.  If that were the case, then it is likely that the accused, like Trooper Ward (see above), was charged first under the Code of Service Discipline, and later re-charged by way of information before a civil court of criminal jurisdiction.  If that were the case, then that means that the accused was charged under the Code of Service Discipline as early as March 2021.

For the sake of clarity, I will describe how charges are ‘transferred’ to the civilian criminal justice system after a CF member has been charged under the Code of Service Discipline.  Although the two processes may have concurrent jurisdiction, they use distinct charging instruments.  Under the Code of Service Discipline (prior to 20 June 2022), a charge was laid when it was reduced to writing on a Record of Disciplinary Proceeding (RDP) and signed by a person authorized to lay a charge.  Where the charge was referred to court martial, DMP, or an officer acting under the authority of DMP, would then have to ‘prefer’ the charge in order to trigger the convening of a court martial.

Where a decision is made to ‘transfer’ the charge to the civilian criminal justice system, this is achieved by laying an information before the civil court of criminal jurisdiction (and, typically, concurrently withdrawing the charge under the Code of Service Discipline).  In other words, the same charge would be re-laid, before a civil court of criminal jurisdiction, using a different ‘charging instrument’.  If no charge had previously been laid under the Code of Service Discipline, it would still be necessary to lay a charge by way of information before the civil court of criminal jurisdiction.

Therefore, either the charge of sexual assault was first laid, in December 2021, by information before a civil court of criminal jurisdiction, or it was laid under the Code of Service Discipline much earlier in 2021 and then re-laid by information in order to transfer it to a civil court of criminal jurisdiction.

In the former possibility, the anticipated delay, based upon the scheduling of the trial, was 29 months.  In the latter possibility, up to 9 months of delay arose after the charge was laid under the Code of Service Discipline, before the charge was transferred to the civil criminal justice system.  Note, however, that it is possible that the delay arose in a circumstance that was a composite of these two possibilities: e.g., there could have been four months of delay following the laying of a charge under the Code of Service Discipline, and prior to transfer to the civil criminal justice system, and another 5 months of delay anticipated after the judgment, dated 18 August 2023, regarding the application for delay.  Until the specifics from the judgment are published, we will not know precisely where the delay arose.

However, in either circumstance (or a composite of the two), the delay is not reasonably attributed to the concurrent jurisdiction of the military justice system.

If the delay is entirely attributed to the process within the civil criminal justice system (i.e., following the transfer of the charges in December 2021) then that delay has nothing to do with the concurrent jurisdiction of the military justice system.  It arose because of delay attributable to the civil Crown and the civil criminal justice system.

If the charges were first laid under the Code of Service Discipline and transferred to the civil criminal justice system after nine months of delay had already been incurred under the Code of Service Discipline, then the cumulative delay is attributable, in part, to the decision to transfer the matter to civil authorities, and not the fact that the military justice system has concurrent jurisdiction.

And that is where the Canadian public’s concerns should lie.

In the second circumstance described above, the ‘Jordan clock’ would have begun when the charges were first laid under the Code of Service Discipline.  The decision to re-lay the charges before a different court using a different ‘charging instrument’ should not have ‘re-set’ that clock.

If a decision was made around December 2021 to transfer the prosecution to a civil court of criminal jurisdiction even though there had been 8 or 9 months of post-charge delay within the military justice system, then, frankly, that was a problematic and ill-advised decision.  That represents half the delay permitted under the Jordan framework.  And such a decision is clearly linked to the direction by the (then) MND, Anita Anand, to transfer such prosecutions to the civil courts.

So, if this matter had already accumulated several months of post-charge delay up to December 2021, my question is this: Who thought that would be a prudent course of action?

And, if that decision-maker is purportedly independent, why didn’t that decision-maker conclude that it would be imprudent to transfer the prosecution to civil courts in light of the delay that had already arisen?  Why didn’t that decision-maker indicate to the Minister that the matter would not be transferred to the civil courts as that would invariably jeopardize the prosecution?

As I say, while Justice Richardson placed the blame for the delay on the civilian prosecutor – and we don’t have sufficient publicly-available information to examine that conclusion – there is little merit in the suggestion that the delay was caused by the concurrent jurisdiction of the military justice system.  However, there does appear to be some basis for suggesting that other decision-makers, representing the Crown, also contributed to the delay in the prosecution.

As I say – the Canadian public should be cautious about being sold a bill of goods.

 

 

[1] Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, received Royal Assent on 10 December 1998.  However, the amendment of s 70 of the National Defence Act (NDA), introduced by Bill C-25, and which removed the exemption of jurisdiction for the offences of sexual assault, aggravated sexual assault, and sexual assault with a weapon, where the offence was alleged to have occurred in Canada, did not come into force until 1 September 1999.

[2] In this sense, “domestic” refers to offences alleged to have arisen in Canada, rather than outside Canada.

[3] Preliminary inquiry will only be conducted for matters tried before a Superior Court of Justice, and not a provincial court, such as the Ontario Court of Justice.  Moreover, following amendment of the Criminal Code in 2019 by virtue of the Canadian Victims Bill of Rights, there is no longer a right to a preliminary hearing in a trial for sexual assault contrary to s 271 of the Criminal Code.

[4] Although Ward post-dates R v K.E., the former does not cite, or otherwise mention, the latter judgment of the Ontario Court of Appeal..

[5] In Trépanier, the CMAC held that section 165.14, subsection 165.19(1) of the NDA and article 111.02(1) of the QR&O (as were in force at that time) violated section 7 of the Charter and the right to a fair trial guaranteed by paragraph 11(d) of the Charter.  These provisions empowered the Director of Military Prosecutions to select the type of Court Martial when there was a choice between a General Court Martial (i.e., a trial before a military judge and a jury-like panel) and a Standing Court Martial (trial before a military judge sitting alone).  In the civil criminal justice system, such choices were left to the accused.  Upon declaring the relevant provisions of no force or effect, the CMAC expressly refused to suspend the declaration in order to permit Parliament to amend the provision.