Possible Consequences of R v Beaudry, 2018 CMAC 4 – Observation #1

Over the next few weeks, and prior to the eventual judgment of the Supreme Court of Canada (SCC) on the Stillman/Beaudry appeals, I will have an opportunity to explore some of the consequences – unintended or otherwise – of the Court Martial Appeal Court of Canada (CMAC) judgment in R v Beaudry, 2018 CMAC 4.

Anyone who has been following recent developments in military law and, in particular, the Code of Service Discipline, will be aware that the judgment in R v Beaudry presented a challenge for both the leadership of the Canadian Forces (CF) and, in particular, the Military Police (MP) and the Canadian Military Prosecution Service (CMPS), headed by the Director of Military Prosecutions (DMP).  In September 2018, a majority of the CMAC in R v Beaudry held that paragraph 130(1)(a) of the National Defence Act[1] (NDA) was of no force or effect for offences under the Criminal Code[2] (or other Acts of Parliament) that carried a maximum punishment of 5 years or more imprisonment.  The reason for this declaration was that the provision, which incorporates into the Code of Service Discipline offences under other Acts of Parliament, does not permit trial by jury.  Consequently, the majority of the CMAC held that it contravened an accused’s rights under section 11f of the Canadian Charter of Rights and Freedoms[3].

The judgment clearly was not without controversy.  Certainly, the Chief Justice of the CMAC authored a strong dissent, notably that the Court (or, at least, the composition of that particular bench) was derogating pointedly from earlier CMAC judgments.[4]  DMP also asserted that the judgment would adversely affect 40 cases that were (as of 28 September 2018) in the ‘military justice system’[5].  Presumably these involved serious criminal offences.

Consequently, DMP sought before the SCC a stay of the CMAC’s declaration of invalidity.  I hasten to add that, at the time that this stay was sought, there were not forty courts martial scheduled that involved serious Criminal Code offences.  In fact, there were not forty courts martial scheduled at that time.  Perhaps DMP’s assertion included investigations into serious Criminal Code offences which had been initiated, but had not yet been preferred for court martial.  In any event, DMP’s motion was unsuccessful.[6]

Consequently, some Criminal Code charges arising within the context of the Canadian Forces have begun to appear in the civilian criminal justice system.  There are, however, some nuances regarding the ‘transfer’ of these matters into the civilian criminal justice system.

First, although the CMAC judgment in R v Beaudry was handed down on 19 September 2018, many of the charges arising within the CF have only started to ‘arrive’ in the civilian criminal justice system in the past month or two.  It appears that DMP was reluctant to yield jurisdiction to the civilian justice system.[7]  Perhaps he had hoped that his motion, heard by the SCC on 14 January 2019, would be successful.  As I note above, it was not.  A 5-judge panel dismissed the motion on the same day that it was heard.[8]

In some cases, military prosecutors have attempted to substitute prosecution of an ‘offence under military law’, such as ‘Cruel or Disgraceful Conduct’ under section 93 of the NDA.  This was done by withdrawing the Criminal Code charge, laid pursuant to paragraph 130(1)(a) of the NDA, and then preferring the ‘offence under military law’.  That tactic has also been unsuccessful[9].  A few of the matters presently scheduled for court martial include charges of ‘Cruel or Disgraceful Conduct’[10]; however, the information on the Chief Military judge’s website does not disclose whether these charges for ‘Disgraceful Conduct’ were ‘post-Beaudry’ substitutions for Criminal Code charges that had been laid earlier.  There also remain courts martial on the ‘court martial calendar’ which include Criminal Code charges laid pursuant to paragraph 130(1)(a) of the NDA.  Perhaps DMP hopes for that he will be successful before the SCC.  (On a tangential note, back when I was an infantry officer, I was taught: ‘hope is not a planning method’).

Some charges of sexual assault, contrary to section 271 of the Criminal Code, which were either previously laid pursuant to paragraph 130(1)(a) of the NDA, or which otherwise likely would have been laid pursuant to this provision, are now arising in civilian courts.  In select cases, it appears that the prior charge, laid several months previously under the Code of Service Discipline, has been withdrawn by the Canadian Forces National Investigation Service (CFNIS) and a Criminal Code charge was subsequently laid by way of information brought before a civilian court of criminal jurisdiction.

As I understand it, in some of these cases, civilian Crown Attorneys have elected to proceed with a prosecution; in others, the civilian prosecutors have chosen to withdraw the charges, presumably because there was not a reasonable prospect of conviction.  (It would be difficult to conceive of a circumstance in which a civilian prosecutor would conclude that there was a reasonable prospect of conviction, but it was not in the public interest to proceed with the prosecution of a serious criminal offence such as sexual assault).

Furthermore, in select circumstances, in which the civilian prosecutor has elected not to proceed with a charge transferred to the civilian criminal justice system, it appears that military authorities have then elected to proceed with prosecution of an offence ‘under military law’, such as the aforementioned ‘Cruel or Disgraceful Conduct’.  This is being accomplished by re-laying and re-preferring a charge under the Code of Service Discipline.  It will be interesting to see if applications arise alleging abuse of process.

Certainly, at present, it appears that an increasing number of allegations that would have been prosecuted under the Code of Service Discipline prior to September 2018 (or, perhaps more accurately, prior to February 2019) are now being prosecuted under the civilian criminal justice system.

One of the, perhaps unexpected, consequences of this shift in process is that Military Police investigations into such allegations might proceed more quickly than the laconic pace that characterizes many of the investigations that have been prosecuted under the Code of Service Discipline over the past few years.  In light of the CF preoccupation with Op HONOUR and sexual misconduct, perhaps an informal examination of sexual assault investigations would prove a useful comparator.

Since the initiation of Op HONOUR-related action by various CF stakeholders, there has been a noticeable increase in both administrative and disciplinary action arising from allegations that can be characterized as ‘Op HONOUR-related misconduct’.  As I have described in previous blogs, much of the administrative decision-making affecting the rights, interests, and privileges of respondents of Op HONOUR-related accusations is not readily visible to people interested in military justice, or the public at large.  This is because the decisions and actions by CF decision-makers in those circumstances constitutes personal information of the affected respondents.  Personal information is protected under the Privacy Act[11]; thus, the consequences are not made public.  While this protects the personal information of the affected CF member, it also ensures little or no public scrutiny of the relevant CF decision-making processes.

The decision-making apparatus under the Code of Service Discipline is more public.  Those of us interested in the impact of this decision-making will have access to some aspects of decision-making, including the judgments of courts martial (and appellate courts).  I note that the decisions of presiding officers at summary trial, which constitutes more than 90% of decision-making under the Code of Service Discipline[12], is not nearly so visible.  Nevertheless, decisions at summary trial tend to involve less serious matters.

What is remarkable is that Military Police investigations into sexual assault appear to take much, much longer than similar investigations by civilian police forces.  Allegations of sexual assault that are investigated by the Military Police are investigated by the Canadian Forces National Investigation Service (CFNIS), which has, as its mandate: “…to investigate serious and sensitive matters in relation to National Defence property, DND employees and CF personnel serving in Canada and abroad … regardless of rank or status.”[13]  This unit has seven permanent detachments and members of the CFNIS “… are selected from fully trained, experienced Military Police members who have completed various Military Police training and worked for at least one tour of duty as a Military Police in a Base or Wing before applying to become an investigator with the CFNIS. After selection, they are submitted to specialized training depending on their positions and also have to complete a one-year internship before operating as a full-fledged investigator.”[14]  Presumably, then, they tend to represent many of the best investigators under the command of the Canadian Forces Provost Marshal.

Consequently, it is difficult to understand why investigations into matters such as sexual assault tend to take up to 10 times longer than similar investigations conducted by civilian police forces.

Granted, I have not (yet) conducted extensive statistical research and analysis into the duration of civilian and Military Police investigations.  I suspect that it would be a challenge to obtain the necessary data to do so.  What I do know is that, in my experience, Military Police investigations into offences such as sexual assault, regularly take between 9 and 12 months (if not longer) to complete prior to the laying of a charge under the Code of Service Discipline.  And these are often not complex investigations.  Typically, they involve the interview of a complainant, between one and four additional witnesses, and perhaps the subject of the investigation if he (or she) is imprudent enough to provide a cautioned interview with the Military Police.

Granted, sometimes the witnesses may be located at different bases, requiring investigators to travel long distances to interview the witnesses.  However, the CFNIS benefits from robust budgets for ‘Temporary Duty’ and the availability of commercial airlines.  Frankly, most of the interviews with witnesses are conducted within the first 6 to 8 weeks of an investigation. Nevertheless, charges are often not laid under the Code of Service Discipline for several months, or even in excess of a year.

In comparison, investigations of similar complexity conducted by civilian police forces – again, in my general experience – are completed, and charges are laid, within 4 to 6 weeks.  Even allowing for the fact that civilian police investigators generally have the advantage of not having to travel extensively to interview witnesses, there is a remarkably significant dissonance between the duration of civilian and military investigations.  The pressing question is: why?

I suspect that one of the reasons lies with the significant difference between the control that the civilian justice system exercises over those people brought within its jurisdiction, and the much greater control that CF authorities exercise over ‘persons subject to the Code of Service Discipline’.[15]

Typically, if the civilian criminal justice system is going to exercise coercive powers over a person believed to have committed a serious criminal offence, the person must first be brought under the jurisdiction of the courts.  A common means of doing so arises when a person is charged under the relevant legislative regime (e.g. the Criminal Code), such as by way of an information sworn by a civilian peace officer and laid before the court, and when an accused is compelled to appear before a judge or justice either by a ‘Promise to Appear’[16] or by being arrested by the police.  Where a person is arrested by the police and not released pursuant to an undertaking to an ‘Officer in Charge’[17], that person may eventually be released by a judge or justice subject to conditions of a judicial interim release order[18].  While there are exceptions to the general rule, within the civilian criminal justice system, a person must usually first be charged with an offence before they are arrested and then made subject to conditions for release.

The same is not true under the Code of Service Discipline.

If a person subject to the Code of Service Discipline is suspected of committing a code of service discipline offence, he or she can be arrested (without warrant) by the Military Police[19] (or even a superior who is not a member of the Military Police[20]).  That person can be held until released under conditions by a Custody Review Officer (CRO).[21]  If a CRO refuses to release the CF member, he or she has a right to be brought before a military judge for a military equivalent to a show cause hearing.[22]

Charges are to be laid expeditiously.[23]

Some are laid more expeditiously than others.

The principal factor I wish to highlight is that a CF member can be arrested long before a charge is laid under the Code of Service Discipline, and this is not an uncommon occurrence.  Thankfully, I understand that the frequency with which Military Police will arrest CF members simply in order to question them is markedly lower than when I first became a legal officer.

Often, when CF members are arrested on suspicion of committing a Code of Service Discipline offence, the arrest occurs fairly early in the investigative process.  Consequently, the CF member will be subject to ‘release conditions’ for several months before a charge is even laid.

Even if the CF member is not arrested during the investigative stage, his or her chain of command exercises much more coercive control over the CF member than a civilian employer exercises over an employee.  Where a civilian is arrested and charged by civilian police, most civilian employers will concern themselves only with factors that directly bear on the employee’s status.  CF leadership are much more intimately involved in a CF member’s life.  Where the ‘chain of command’ is aware of a complaint made against one of their subordinates, they will often take significant restrictive administrative action against the CF member, including relieving them of performance of military duty[24], or taking administrative steps to achieve the same result, but without actually relying on express regulatory powers.  There is a broad panoply of powers upon which CF leadership can rely to impose coercive constraints on subordinates.  These actions can be predicated upon a broad spectrum of ‘justifications’, ranging from such audacious acts as daring to wear jeans in public[25] to much more serious wrong-doing.

These decisions will typically be justified by the fact that the CF member is either the subject of a Military Police or disciplinary investigation or has been accused of some form of misconduct.  A CF member is not permitted to have these administrative decisions reviewed by a court in the same way that a CRO’s refusal to release a detained CF member may be reviewed by a military judge, or that bail conditions may be reviewed by a judge of the Superior Court.  A CF member must first grieve such administrative decisions; however, that process could take several months, or even years.  As slow as the Code of Service Discipline process is, the grievance process can often be much slower.

Thus, a CF member who is accused of a Code of Service Discipline offence (which, prior to the judgment in R v Beaudry, included sexual assault and other serious offences under the Criminal Code arising in Canada) could be subject to restrictive release conditions under the Code of Service Discipline and/or restrictive administrative conditions for several months before a charge is even laid under the Code of Service Discipline.

Then, once the charge is laid, it could take 3 to 9 months for a charge to be preferred by a prosecutor acting under the direction of DMP.

Where a charge is sufficiently serious to require a court martial, or when an accused elects court martial (in order to benefit from the procedural protections that this process affords him or her) several steps must then be followed.  The accused’s commanding officer must apply to a referral authority to have the matter referred to DMP.[26]  While this is a fairly straight-forward process, and a commanding officer has the benefit of assistance from the unit legal advisor, this process typically takes one to three months from the date that an accused elects court martial or the decision is made that the matter should proceed to court martial.  However, the staffing of such requests could be completed in a couple of weeks (or less), if it were given greater priority.

Once the file arrives at the referral authority (either a commander of a command, or a commander of a formation who has the powers of a commander of a command[27]) that officer must then choose whether to refer the charge(s) to DMP[28].  The referral to DMP can take another one to three months.  Again, the referral authority also has the benefit of a legal advisor from the Office of the JAG.  And, again, if it were given sufficient priority, the staffing of the referral could be completed in a couple of weeks, or less.

Perhaps the staffing of the application and referral are not expedited because the CF leadership have already concluded that the accused is guilty and, therefore, does not merit a timely process.  Perhaps, where the accused dares to elect trial by court martial, the chain of command is less-than-motivated to ensure that the court martial referral process is as swift as summary justice would have been.  Or, perhaps there is little incentive for a more timely referral process, since there has not been much pointed criticism of these delays when matters are eventually heard before military judges.

Then DMP will assign the matter to a prosecutor, who conducts a charge screening.  This can take anywhere from a month to six months.  Once the charge screening is done, the prosecutor will ‘prefer’ a charge on behalf of DMP.  This may be the same charge that was laid against the CF member several months earlier, or, the prosecutor may prefer a different or additional charges.[29]  This ‘preferral’ will then precipitate the convening of a court martial by the Court Martial Administrator.[30]

Often, the accused’s defence counsel will receive disclosure only after the charge is preferred.  And remember: at this stage in the process, three, six, or even nine months or more may have transpired since the charge was laid.  And the accused may have been subject to restrictive release conditions or administrative restrictions for several months, or even more than a year, before the charge was even laid.

And what makes the delay at the ‘charge screening’ stage peculiar is that, if the charge arises from a CFNIS investigation, this is not the first time that a prosecutor from the Canadian Military Prosecution Service has reviewed the investigation.

One reason that CFNIS investigations appear to take so long is that, once the investigation is concluded, it is typically sent to a military prosecutor for ‘pre-charge screening’ – the prosecutor will review the CFNIS investigation and proposed charge(s) and to provide legal advice on both.  Thus, where the charge is a serious accusation (i.e. one investigated by the CFNIS), by the time the charge is preferred by DMP, it has actually been screened by two different prosecutors at two different stages in the process.

While the charge referral and preferral process under the Code of Service Discipline is hardly the ‘poster child’ for prosecutorial efficiency or a timely disciplinary process, the present blog article is focused on how proceeding in the civilian justice system may actually lead to more efficient and timely Military Police investigations.

I suggest that one of the reasons that CFNIS investigations into alleged serious criminal misconduct (such as sexual assault) take so long is that, prior to referring a file to the Canadian Military Prosecution Service for the first of two screenings, and prior to laying any charges, the CFNIS will first ensure that every investigative avenue is completed, including the execution of any search warrants and the technical or scientific examination of the fruits of such search and seizure.  Charges are not laid under the Code of Service Discipline as soon as the CFNIS has sufficient evidence to justify the laying of a charge; rather, charges are only laid once the entire investigation is concluded in its entirety, even if it takes a year or longer.

In some cases, it may truly be necessary to delay the laying of charges until the results of certain avenues of investigation are completed.  However, that is not always the case.

Again, discussion of investigations into alleged sexual assault can offer a useful practical example, as there have been many such investigations since the initiation of Op HONOUR.  Often, these investigations will turn principally on statements from the complainant and, perhaps one or two other witnesses.  The subject of the investigation may, or may not, offer a statement to Military Police investigators.  Typically, these statements are gathered in the first 4 to 8 weeks of an investigation.  The CFNIS may seek corroboration of these statements through digital media such as e-mails, mobile phone text messages, or other communication.  The Military Police may even get DNA warrants or other search warrants.  However, just as with investigations of civilians by civilian police, the principal evidence is typically obtained from statements by witnesses.

It is not unusual for such prosecutions to turn on the issue of consent.  While ancillary evidence may be useful for some aspects of a prosecution, any eventual prosecution often turns on what the complainant and accused have to say.

When civilian police face such investigations, they, too, might seek corroborating evidence such as DNA samples or digital communication.  The difference is that they typically seek this corroborating evidence after the subject has been charged, based upon the initial evidence that they gather.  In so doing, the civilian police make use of concurrent activity: while the prosecutorial process is pursued following the laying of a charge, the civilian police continue to gather corroborating evidence, and this is disclosed as part of the Crown’s ongoing disclosure obligations to the defence.  This leads to prosecutorial efficiency.

I find it unusual that the civilian criminal justice system makes greater and more efficient use of the concept of ‘concurrent activity’ than does the military disciplinary process.  ‘Concurrent activity’ is one of the fundamental principles of battle procedure and the operational planning process taught throughout the CF.  However, it appears that military investigators could learn a thing or two about battle procedure from their civilian counterparts.

One of the reasons why civilian justice stakeholders, such as civilian police and prosecutors, make use of concurrent activity is that they must do so.  If they wish to assert some level of control over the subject of a criminal investigation, they must typically first lay a charge against that person, in order to bring the accused within the jurisdiction of the courts.  Thus, once they have sufficient evidence to support a reasonable belief to lay a charge and a reasonable prospect of conviction, they will tend to act.  They are also aware of the need to act in a timely and efficient manner.  Any subsequent delay will become increasingly relevant to the accused right under section 11 b of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time.[31]

Stakeholders in the Code of Service Discipline have traditionally had the luxury of a more coercive and controlling context.  Therefore, they have not had the same incentives to be more efficient and more timely with their investigations of serious criminal misconduct.  They are able to front-load delay before a charge is laid, knowing that section 11b of the Charter applies solely to ‘post-charge delay’ and that pre-charge delay is only relevant in the broader concept of abuse of process, where it is rare for pre-charge delay to have a marked negative impact on a prosecution.[32]  Courts, particularly courts martial, are reluctant to conduct close scrutiny of pre-charge delay and other exercises of investigative and prosecutorial discretion absent a clear indication of jeopardy to the fairness of the court’s process.  I suggest that there is more than a hint of impunity in the lengthy pre-charge delay that is a common occurrence in CFNIS investigations into what are, objectively, simple investigations.

CF decision-makers will be intuitively aware that they exercise much greater control over the day-to-day lives of their subordinates, when compared to civilian employers.  Moreover, judges presiding at courts martial will be reluctant to examine what are characterized as ‘administrative decisions’ by ‘military employers’, even though these employers exercise markedly more coercive authority over their non-contractual employees, and their decisions are often directly related to the disciplinary process that gives rise to both the CFNIS investigation and the eventual court martial.

Now that military authorities are generally prohibited from prosecuting serious Criminal Code allegations under the Code of Service Discipline and that such charges must generally proceed in the civilian criminal justice system, it is possible that CFNIS investigations will be pursued much more quickly.

In order to bring a CF member within the civilian criminal justice system in a timely manner (in order to subject the accused to onerous release conditions), charges will have to be laid much earlier than they are in the Code of Service Discipline.  The CFNIS will either have to conclude their investigations more quickly or, as will likely be the case, they will be obliged to lay a charge or charges once they have sufficient evidence to do so, and will have to accept the requirement to conduct concurrent investigative activity once the criminal justice process is initiated.  They will no longer have the luxury of ‘front-loading’ delay as ‘pre-charge delay’.

Equally, the accused will not have to wait six months or more for the preferral process to run its course and to finally receive disclosure.  Instead, the accused will likely have their first appearance set in the civilian criminal justice system within a month of a charge being laid and the ‘Jordan clock’ starts to tick.  There will now be an incentive for timely disclosure and timely resolution of the process that appears to be largely absent under the process established under the NDA.

If the SCC upholds some or all of the judgment in R v Beaudry, one of the tangential, and perhaps unanticipated, consequences might just be more efficient Military Police investigations.

 

[1] RSC 1985, c N-5 [NDA].

[2] RSC 1985, c C-46.

[3] Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[4] R v Beaudry, 2018 CMAC 4, paras 84 to 88.

[5] Lee Berthiaume, “Court ruling raises questions about future of Canada’s military justice system”, (Globe and Mail, September 28, 2018): https://www.theglobeandmail.com/canada/article-bombshell-court-ruling-raises-questions-about-future-of-canadas/.

[6] R v Beaudry, 2019 SCC 2.

[7] Murray Brewster, “Supreme Court Rejects bid to block court ruling that left dozens of military prosecutions in limbo”, (CBC News, Jan 14, 2019): https://www.cbc.ca/news/politics/beaudry-military-justice-supreme-court-1.4977510.

[8] R v Beaudry, 2019 SCC 2, per Gascon J: “We are all of the view that the Crown’s motion to stay the declaration of invalidity in the Court Martial Appeal Court judgment of September 19, 2018, should be dismissed. The applicable criteria set out in Manitoba (Attorney General) v Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 1 SCR 110, and RJR — MacDonald Inc. v Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311, are not in dispute. The Crown has failed in our view to establish that the balance of convenience favours granting the stay sought.  The motion is therefore dismissed.”

[9] R v Spriggs, 2019 CM 4002.  However, DMP, on behalf of the Minister, is presently appealing that decision.

[10] Office of the Chief Military Judge, Upcoming Court Martial Proceedings (as at April 15, 2019): https://www.canada.ca/en/chief-military-judge/services/upcoming-courts-martial.html.

[11] RSC 1985, c P-21.

[12] According to the Annual Reports of the Judge Advocate General over the past several years, summary trials before presiding officers consistently represent more than 90% of trials under the Code of Service Discipline: https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law.html.

[13] National Defence and the Canadian Armed Forces, “The Canadian Forces National Investigation Service”, Backgrounder (December 12, 2008) Archived: http://www.forces.gc.ca/en/news/article.page?doc=the-canadian-forces-national-investigation-service/hnps1u2k.

[14] Ibid.

[15] Technically, there are rare circumstances in which civilians may be subject to the Code of Service Discipline pursuant to paragraphs 60(1)(e), (f), (g), (h), (i), or (j) of the NDA.  However, the focus of this Blog article will be on officers and non-commissioned members of the CF.

[16] Criminal Code, n 2, s 501.

[17] Ibid, ss 498 and 499.

[18] Ibid, s 515.

[19] NDA, n 1, s 156.

[20] Ibid, s 155.

[21] Ibid, ss 158.1 to 158.6.

[22] Ibid, s 159.

[23] Ibid, s 161.

[24] Queen’s Regulations and Orders for the Canadian Forces (QR&O) arts 19.75 and 101.09.

[25] David Pugliese, “Royal Military College punishes entire corps of officer cadets because some wore jeans off campus”, (National Post, March 2, 2018): https://nationalpost.com/news/canada/royal-military-college-punishes-entire-corps-of-officer-cadets-because-some-wore-jeans-off-campus.

[26] QR&O, n 24, art 109.03.

[27] QR&O, n 24, art 109.02.

[28] NDA, n 1, s 164.2; ibid, art 109.05.

[29] For greater detail, see QR&O, n 24, chapter 110.

[30] QR&O, n 24, art 111.02.

[31] R v Jordan, 2016 SCC 27.

[32] R v Hunt, 2017 SCC 25, rev’g 2016 NLCA 61.