Prosecuting the Chief of the Defence Staff
Could the Chief of the Defence Staff (CDS) be prosecuted under the Code of Service Discipline?
Recently, Global News published a report alleging misconduct on the part of the former CDS, General Jonathan Vance. Specifically, it was alleged that he had a relationship with another member of the Canadian Forces (CF) whom he significantly outranked. It was also suggested that he made a sexual comment to another junior CF member, prior to becoming CDS. A subsequent report by Global News has stated that the current CDS, Admiral Art McDonald, has indicated that the matter will be investigated.
Regarding the recent news coverage, I wish to stress a couple of points. First, the allegations raised by Global News cite anonymous sources. As I have advocated consistently in this Blog, any member of the CF accused of wrong-doing, whether under the Code of Service Discipline or in an administrative process, must be afforded an opportunity to make informed and meaningful representations to an open-minded and unbiased decision-maker. The procedural fairness that must be afforded will be dictated by the nature of the process, and the potential consequences of the anticipated decision.
In this Blog, I have regularly criticized General Vance’s policies and pronouncements, particularly regarding Op HONOUR. However, he, like any other CF member, is entitled to procedural fairness, even though many CF members, more junior in rank than General Vance, have not benefitted from adequate procedural fairness or substantively reasonable decisions under policies and initiatives implemented by General Vance.
Second, in the commentary that follows I do not intend to evaluate the merit of the allegations against General Vance or the likelihood that he might be charged or found guilty under the Code of Service Discipline. At this point in time, that is largely speculative. An actual disciplinary investigation has not been completed and it remains unclear what statements, if any, have been provided to any CF person or organization with the authority to act.
The relevant facts pertaining to those allegations may be disclosed in due course. It is also possible that sufficient facts will not come to light. If an investigation is conducted and completed, General Vance, presumably, will be offered an opportunity to make full answer and defence. My goal in the present Blog is to highlight some of the challenges and shortcomings in the application of the Code of Service Discipline where the subject of an investigation or proceeding is the CDS (or the former CDS).
For the purposes of this discussion, I will focus on the challenges that would arise if an actual disciplinary investigation were conducted which identified evidence upon which a charge-laying authority might act. There are a number of jurisdictional constraints and uncertainties that would arise if the CDS were the subject of a disciplinary investigation and subsequent prosecution, including: who would lay such a charge; who could refer it to the Director of Military Prosecutions (DMP); whether a court martial could be convened; and, who could preside over a court martial?
I do not know if General Vance has yet been lawfully released from the Canadian Forces (CF). While he is no longer CDS, it is possible that General Vance is on what is colloquially referred to as ‘terminal leave’ – i.e. using accumulated leave at the end of his service. If that were the case, he would still be in the CF until he is lawfully released. However, for the purpose of the comments that follow, I will assume that he has been lawfully released from the CF.
Pursuant to subsection 60(2) of the National Defence Act (NDA), a CF member faces ‘continuing liability’ under the Code of Service Discipline:
(2) Every person subject to the Code of Service Discipline under subsection (1) at the time of the alleged commission by the person of a service offence continues to be liable to be charged, dealt with and tried in respect of that offence under the Code of Service Discipline notwithstanding that the person may have, since the commission of that offence, ceased to be a person described in subsection (1).
Where this provision has been relied upon in the past, what typically arises is: (1) the CF member is charged with one or more Code of Service Discipline offences; (2) the CF member is then released (for whatever reason, including reasons unconnected with the disciplinary proceeding); and, (3) the CF member is prosecuted under the Code of Service Discipline. This does not arise frequently, but it is not unheard of. By way of comparison, when (then) Brigadier-General Menard was prosecuted by court martial in 2011, he was tried after he had retired from the CF: R v Menard, 2011 CM 3007. Despite having already retired, the punishments imposed on him included ‘reduction in rank’ (to the rank of Colonel).
However, by virtue of this provision, a charge can be laid even if the investigation is conducted after a CF member is released from the CF. It is rare for this to occur; however, I am aware of at least one circumstance in which a Code of Service Discipline charge may have been laid in this manner: R v Ex-Pte Talbot, 2006 CM 26.
Also, for the purposes of any Code of Service Discipline proceeding brought against the (now, presumably) retired General Vance, he would be deemed to hold the rank of General:
(3) Every person who, since allegedly committing a service offence, has ceased to be a person described in subsection (1), shall for the purposes of the Code of Service Discipline be deemed, for the period during which under that Code he is liable to be charged, dealt with and tried, to have the same status and rank that he held immediately before so ceasing to be a person described in subsection (1).
Even if he has lawfully been released from the CF, General Vance is still potentially liable under the Code of Service Discipline for any disciplinary misconduct that he may have committed while he was an officer of the Regular Force. The CF continues to have jurisdiction to address the wrongs that a person may have committed while serving, even if that service has finished.
Investigation and Charge
In light of the CDS’ rank and position, an allegation of wrong-doing would inevitably have to be investigated by the Canadian Forces National investigation Service (CFNIS). Even that could be problematic, as the Canadian Forces Provost Marshal (CFPM) falls under the general supervision of the Vice Chief of the Defence Staff (VCDS). This supervision is typically expressed in terms of general instructions or guidelines that must be made public. The intent behind these requirements, and behind the establishment of the position, duties, and functions of the CFPM in the NDA, is to safeguard the investigative independence of the Military Police. Whether these safeguards are sufficient has not yet been tested in the Code of Service Discipline.
Presumably, an allegation of wrong-doing by the CDS would be investigated first as a disciplinary (or criminal) matter, rather than by way of an administrative investigation. Otherwise, the ‘right to silence’ under section 7 of the Canadian Charter of Rights and Freedoms (Charter) arising in a disciplinary prosecution could be undermined by the right, or need, to make representations in an administrative proceeding. This principle would apply to processes involving more junior personnel; it would apply to the CDS as well.
An officer or non-commissioned member (NCM) of the CFNIS has the authority to lay a charge under the Code of Service Discipline. Where the subject of an investigation is the CDS, an officer or NCM of the CFNIS would be the only potential charge layer who would conceivably be in a position to lay a charge. The other charge layers identified under article 107.02 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) include a commanding officer or an officer or NCM authorized by a commanding officer. However, as I describe below, this would be problematic for a serving CDS or, frankly, the former CDS.
I expressly mention that the CFNIS would be the likely charge layers as it is common for the CFNIS to refrain from laying what they might characterize as ‘disciplinary charges’ – i.e. charges for offences arising under the Code of Service discipline that are not Criminal Code offences. The Global News report suggests that General Vance may have committed an offence under section 129 of the NDA – an act or conduct to the prejudice of good order and discipline. A charge or charges under s 129 of the NDA are often referred to, colloquially, as ‘disciplinary offences’ – even though they are Code of Service Discipline offences, just like all other offences arising under sections 72 to 130 of the NDA. When the CFNIS investigate allegations of wrong-doing but conclude that they do not believe that a Criminal Code offence was committed, they will typically refer the matter to the ‘chain of command’ for disciplinary action, administrative action, or both. In other words, the CFNIS will often not deign to lay a charge for an offence that is not a Criminal Code offence.
However, that would be problematic where the subject of the investigation was the serving CDS. In such circumstances, there would be no ‘chain of command’ to whom the matter could be referred. By virtue of his being “… charged with the control and administration of the Canadian Forces …” the CDS sits at the apex of the CF. He embodies the ‘chain of command’. If a serving CDS were to be charged in relation to allegations similar to those described in the recent Global News reports, the only conceivable way to proceed would be if the charges were laid by an officer or NCM of the CFNIS pursuant to paragraph 107.02(c) of the QR&O.
Where the subject of the investigation is the former CDS, the matter, conceivably, could be referred to the current CDS. However, I would suggest that, for the sake of propriety, it would be appropriate for the CFNIS to lay the charge. After all, isn’t that the part of the reason for their oft cited, and much vaunted, ‘independence’?
The investigation of allegations against the CDS and the subsequent laying of a charge or charges against the CDS is the ‘easy part’ of the broader issue, and it is by no means an easy step. However, the challenges become markedly more difficult once a charge is laid.
First, the charge or charges would have to be referred to a commanding officer (CO) or superior commander. The problem is that the CDS, a Governor in Council appointee, does not have a CO and is not subject to the direction of a superior commander. By virtue of section 18 of the NDA, the CDS is responsible for the control and administration of the CF. The reality is that, even if the CFNIS laid a Code of Service Discipline charge against a serving CDS, there is no one to whom they could refer the charge.
That’s not surprising, since the Code of Service Discipline is a tool designed for the chain of command. However, that reality tends to refute an argument recently brought by counsel acting under the direction of DMP in appeals before the Court Martial Appeal Court of Canada (CMAC). In their memorandum of fact and law, appellate counsel from the Canadian Military Prosecution Service argued:
“One of the fundamental concepts of the rule of law is that no one is above the law and everyone regardless of condition or rank is subject to the ordinary laws of the land.”
In practical reality, the CDS may very well be ‘above’ the Code of Service Discipline.
While art 107.12 of the QR&O does permit an officer or NCM of the CFNIS to refer a charge directly to DMP if “… [a] commanding officer or superior commander … decides not to proceed with a charge laid …”, it is silent on any authority for a direct referral absent the involvement of a CO or superior commander who may exercise such authority. A military prosecutor could assert that a direct referral could be inferred from the Governor in Council regulations; however, that is an untested argument and, in light of the wording of article 107.12, not a particularly compelling one.
By virtue of an order signed by General Vance on 14 June 2019, the officer appointed as the VCDS, if that officer holds the rank of Lieutenant-General or Vice-Admiral (which that officer tends to hold), is designated the CO for all officers holding the rank of Lieutenant-General/Vice-Admiral or Major-General/Rear-Admiral and who are on strength at National Defence Headquarters (NDHQ).
The same order asserts that the CDS is the CO for the VCDS.
However, there is no CO for the CDS. Again, the CDS sits at the apex of the CF hierarchy. There is no officer who could be his CO. And it is debatable whether the current CDS could perform the duties and functions of CO regarding a Code of Service Discipline charge laid against the former CDS.
Convening a Court Martial
But the jurisdictional problems do not end there. If a charge or charges laid against the CDS give rise to a right to elect trial by General Court Martial, it would be impossible to empanel a 5-officer General Court Martial Panel. Panels for General Courts Martial convened for an accused who holds the rank of at least Brigadier General/Commodore do not require all Panel members to hold ranks equal to, or higher than, the accused. By virtue of subsection 167(4) of the NDA, the Panel may be comprised of officers at or above the rank of colonel. However, by virtue of the same provision, the senior member of the Panel must be an officer of, or above, the rank of the accused.
If the accused were the serving CDS, it would be impossible to convene a Panel. Only one officer holds the rank of General/Admiral in the CF, and that is the CDS; there is no other officer at or above the rank of the CDS.
In fact, it is dubious whether it would be possible to empanel a General Court Martial for the former CDS. Even if the current CDS could be characterized as the CO of the former CDS for the purposes of the Code of Service Discipline (including for the referral of a charge to DMP), the current CDS would be precluded from serving on the Panel by virtue of paragraph 168(c) of the NDA, which prohibits the CO of the accused from serving on a Panel.
The only way a court martial could possibly be convened for the CDS (or, it appears, for the former CDS) is if the charge laid did not give rise to an election for General Court Martial.
The Global News report suggests that the former CDS could potentially be charged under section 129 of the NDA. The maximum punishment if an accused is found guilty of an offence under section 129 of the NDA is ‘Dismissal with Disgrace’ or lesser punishment. Pursuant to paragraph 165.191(1)(a) of the NDA, this would not give rise to a mandatory General Court Martial. However, pursuant to paragraph 165.192(a) of the NDA, since the maximum punishment for an offence under section 129 of the NDA exceeds ‘imprisonment for less than two years’, the proceeding would not be limited to a Standing Court Martial. Thus, pursuant to section 165.193, if General Vance were charged with one or more offences under s 129 of the NDA, he would have a right to elect trial by General Court Martial. [Editorial Note: This paragraph was updated on 8 February 2021.]
Who Would Preside?
However, selection of a Panel for a General Court Martial is not the only potential barrier to proceeding. Even if we were to assume that: (1) a charge were laid by the CFNIS; (2) a defensible process of referral to DMP could be identified and used; and, (3) the charge did not give rise to a right to elect trial by General Court Martial or General Vance does not elect trial by General Court Martial – who could preside?
There are four military judges appointed by the same Governor in Council who appoints the CDS. We still do not have an actual Chief Military Judge – and have not had a Chief Military Judge since 20 March 2020 – so the Deputy Chief Military Judge, Lieutenant-Colonel d’Auteuil, is the de jure Acting Chief Military Judge.
If charges were laid against General Vance – whether as the current CDS or, as he is now, the former CDS – he could conceivably bring a motion for recusal based upon an apprehension of bias if LCol d’Auteuil were to assign himself, Commander Pelletier, or Commander Sukstorf as the presiding military judges.
Over the course of 2020, all three of those military judges repeatedly found the CDS’ Designation Order of 2 October 2019 to be a contravention of the Charter. That Designation Order purported to place military judges under the disciplinary supervision of the Deputy Vice Chief of the Defence Staff. Various accused, appearing before those military judges at court martial, brought applications arguing that their right to a fair trial before an independent and impartial tribunal (as guaranteed under paragraph 11(d) of the Charter) was infringed by the Designation Order.
As I observed – repeatedly – in this online Blog, the three aforementioned military judges all held that the Designation Order undermined their judicial independence. All three judges clearly communicated their dissatisfaction with the (then) CDS’ refusal to revoke or suspend his Designation Order. Even when General Vance suspended that order, two of those military judges held that the CDS’ overt identification of the ongoing disciplinary authority over military judges, expressed in Canadian Forces Organization Order (CFOO) 3763 (as it was drafted prior to 18 November 2020), continued to perpetuate the Charter infringement. Notably, Commander Sukstorf did not.
The most recently appointed military judge, Commander Deschênes, was not involved in any of the judgments relating to the recent applications under paragraph 11(d) of the Charter. This was likely because she was the legal advisor assigned to the CDS Office (CDSO) at the material time that the Designation Order was issued. Her tenure at the CDSO also appears to overlap with part of the material time suggested in the Global News report. Interestingly, this factor might well precipitate an objection from DMP, rather than the accused. However, if the other three military judges were precluded from presiding due to an apprehension of bias, would counsel for DMP be hesitant to object to Commander Deschênes? Such an objection would likely highlight the practical inoperability of the Code of Service Discipline, which DMP may wish to avoid.
In any event, there are potential objections to each of current serving military judges. It has been three years since the former Chief Military Judge was charged under the Code of Service Discipline, and almost a year since those charges finally collapsed, in large part, for want of a military judge who could preside over a court martial. One possible solution regarding potential conflict or apprehension of bias would be for the Governor in Council to appoint ‘reserve force military judges’ to the Reserve Force Military Judges Panel. This power has existed since 2013, yet it appears to be unused. Perhaps that should not be surprising when the Governor in Council has still not appointed a new Chief Military Judge.
Consequently, it is dubious whether any current military judge could preside over a court martial convened to try General Vance, assuming that a court martial could even be convened.
If not a Court Martial, then what?
Based upon the initial Global News reports, there has not been a suggestion that General Vance committed a criminal offence. Purportedly, an investigation will be conducted, quite possibly by the CFNIS. I will refrain from speculating on what evidence they might identify as a result of the investigation, or whether they might identify evidence of a Criminal Code offence. The comments that follow will focus on a possible option if a charge is laid relating to section 129 of the NDA – an act or conduct to the prejudice of good order and discipline.
If it is not possible to proceed with a court martial, would it be possible for such a charge to be heard by a Superior Court of Justice, relying on the inherent jurisdiction of a ‘section 96 court’? I had made a similar suggestion when the prosecution against the (then) Chief Military Judge, Colonel Mario Dutil, fell apart for lack of a military judge who could preside in French and who would not have given rise to an apprehension of bias. There is a compelling argument that a Superior Court of Justice, with inherent jurisdiction, would have the capacity to preside over the prosecution not only of Criminal Code offences, but also Code of Service Discipline offences created by Parliament under the NDA.
Independent of any merit of any allegations against General Vance (or the merit of the investigation that the current CDS has suggested will occur), there are significant jurisdictional hurdles to holding a CDS accountable under the Code of Service Discipline as it is presently constructed. One might argue that, since the CDS sits at the apex of the ‘chain of command’ of the CF, it should not be surprising that he would not be subject to the Code of Service Discipline in the same manner as more junior CF personnel. I have also suggested previously that, due to their particular functions under the Code of Service Discipline, officers such as the Judge Advocate General of the Canadian Forces and DMP could not conceivably be prosecuted under the Code of Service Discipline.
All of this tends to illustrate that counsel for DMP may not have been entirely correct in suggesting that no one is ‘above the law’ in the application of the Code of Service Discipline.
And this is alarming in a country that recognizes, and purportedly embraces, the supremacy of the rule of law as a fundamental democratic principle.
Pragmatically, it would be impossible to prosecute a ‘current’ CDS under the Code of Service Discipline (as it is presently constructed). Indeed, even if an investigation were to identify evidence upon which Code of Service Discipline charges could be laid against the former CDS, General Vance, prosecuting him before a court martial is a completely separate issue, and one that the CF might not be able to resolve.
One thing is likely certain: Justice Fish and his team conducting the Third Independent Review of the NDA are undoubtedly watching how this unfolds and will likely offer significant comment on these issues.
 Mercedes Stephenson, et. al., “Former top soldier Gen. Jonathan Vance facing allegations of inappropriate behaviour with female subordinates: sources”, (2 February 2021), online: Global News <https://globalnews.ca/news/7614063/jonathan-vance-sexual-misconduct-operation-honour/>.
 Mercedes Stephenson, et. al., “Gen. Jonathan Vance will be investigated over allegations of inappropriate behaviour”, (3 February 2021), online: Global News <https://globalnews.ca/news/7616625/jonathan-vance-military-investigation/>.
 National Defence Act, RSC 1985, c N-5 [NDA].
 Ibid, s 60(3).
 Ibid, s 18.5.
 Ibid, ss 18.3 and 18.4.
 Queen’s Regulations and Orders for the Canadian Forces [QR&O], para 107.02(c).
 NDA, n 3, s 18.
 NDA, n 3, s 18.
 R v Edwards, CMAC 606; R c Crépeau, CMAC 607; R c Fontaine, CMAC-608; and R v Iredale, CMAC-609. A cross-appeal has been brought in R c Crépeau. The appeals were brought following judgment in in R v Edwards, 2020 CM 3006 [Edwards], R c Crépeau, 2020 CM 3007 [Crépeau], R c Fontaine, 2020 CM 3008 [Fontaine], and R v Iredale, 2020 CM 4011 [Iredale].
 By way of rough comparison, in the Armed Forces of the Republic of France, the Minister of Defence is deemed to be the ‘commanding officer’ of the Chief of the Defence Staff: Code de la defense, art. L4137-1 to L4137-5 <https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006071307/LEGISCTA000006166979/#LEGISCTA000006166979>; Code de la défense, regulations, Section 3: Sanctions disciplinaires (Articles R4137-9 à R4137-46) <https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006071307/LEGISCTA000018709156/#LEGISCTA000018710974>. Under French military law, there’s a difference between the Code de la défense, in which ‘Partie 4, Livre I, Titre III, Chap. VII’ pertains to disciplinary (non-criminal) powers and the Code de justice militaire (nouveau) which deals with criminal jurisdiction over service members. In the context of what has been reported by Global News, the former process would have sufficient tools to deal with the matter properly.
 Which would also preclude the CDS from sitting as the senior member of a Panel if the VCDS were tried by General Court Martial. That might explain why the charge against Vice-Admiral Norman proceeded in a civil court of criminal jurisdiction. Another Lieutenant-General or Vice-Admiral could potentially be appointed the Senior member of a Panel for a General Court Martial convened to try the VCDS; however, they might be subject to challenges for bias, since those officers are technically in competition for the position of CDS.
 Government of Canada, Office of the Chief Military Judge, Organizational Structure of the Office of the Chief Military Judge: Commander C.J. Deschênes, CD, online: <https://www.canada.ca/en/chief-military-judge/corporate-information/organizational-structure/biographies-deschenes.html>. See also: Canada (Director of Military Prosecutions) v Canada (Office of the Chief Military Judge), 2020 FC 330.
 NDA, n 3, s 165.22.
 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, s 96.
 Rory Fowler, “Judicial review brought by the Director of Military Prosecutions could have been avoided”, (25 November 2019), online: Ottawa Citizen, Defence Watch <https://ottawacitizen.com/news/national/defence-watch/fowler-judicial-review-brought-by-the-director-of-military-prosecutions-could-have-been-avoided>.
 Rory Fowler, “Breaking the Deadlock: Independence of the Military Judiciary and the Court Martial Appeal Court of Canada”, (5 January 2021), online: SSRN <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3760834>.