Prosecution (or not) of public dissent and criticism in the Canadian Forces

17 December 2023

 

Military justice should be administered fairly and transparently.

Military justice should not be administered arbitrarily.

Military justice should not appear to be administered arbitrarily.

That’s a good way to cause people to lose confidence in the administration of military justice.

Dare I say: That’s a good way to bring the administration of justice into disrepute.

I began writing a Blog post 4 weeks ago in order to offer some much-needed commentary on the court martial of Warrant Officer James Topp (retired).  I was delayed due to other work priorities.  However, in light of the recent news that the Director of Military Prosecutions (DMP), Colonel Dylan Kerr, had opted not to prosecute Major Stephen Chledowski for a similar breach of discipline, that delay offers an opportunity for a more expansive examination of the significance of the prosecution of James Topp, the ‘non-prosecution’ of Stephen Chledowski, and related issues.

And this discussion may take some time.

Are we seated comfortably?  Then we’ll begin.

 

Issues

One of the frequent comments arising from the news that DMP has chosen not to prosecute Major Chledowski is that this represents a clear double-standard of the application of military justice: non-commissioned members (NCM) are prosecuted for misconduct while officers who are alleged to have committed similar, or more egregious, misconduct are not.  One of the common euphemisms that has been used is that officers get to “skate”.

That reaction is entirely understandable and there is some merit to such a perception.  However, I suggest that these circumstances demonstrate more than a simple double-standard and that the issues are much more nuanced.  These issues involve the deliberate paucity of information regarding the decisions in many of these matters.  And this is aggravated by a variety of seeming arbitrary decisions and actions.  And these include arbitrary leaks of military police investigations and other information and the seeming arbitrary tolerance for certain types of politicized speech by members of the Canadian Forces (CF).

While double-standards in the administration of military justice would certainly bring the administration of justice into disrepute, I contend that this is not the central problem illuminated by recent outcomes and decisions under the Code of Service Discipline.  Rather, the lack of transparency and the apparent arbitrariness in decision-making represent broader, more encompassing shortcomings.  And these two factors are potentially more destructive to the military justice system.  They undermine the confidence that the Canadian public and military personnel can have in military justice, in part because these issues are not well articulated or discussed robustly on most public platforms.

While I will examine double-standards in the administration of military justice, I will also attempt to discuss some of the problematic aspects of decision-making by key statutory actors in the administration of military justice.  Some of this discussion will cover issues that we have discussed before.  My goal is to illuminate some of these issues and to encourage rational debate and discourse on the same.  Frankly, much of the debate on the administration of military justice fails to engage with these issues.

Before delving into examples of the administration of the military justice system for James Topp, Stephen Chledowski, and other CF personnel who have offered public criticism of CF policies relating to COVID-19, I will offer some brief comments regarding contemporaneous changes to the Code of Service Discipline.  These changes are mostly tangential to much of the discussion; however, for the clarity of discussion, an explanation of the impact of the legislative amendments is prudent.

I will then turn to a discussion of four specific matters that arose within the context of public criticism by CF personnel regarding CF policies in relation to the COVID-19 pandemic.  We will start with the court martial of James Topp.  I will also discuss the court martial of Officer Cadet (OCdt) Laszlo Kenderesi and the summary trial of Aviator Riley MacPherson.  That third name may be unfamiliar to some of the people reading this Blog post.  And I suggest that this factor represents part of the problem with arbitrariness in the administration of military justice.  And we will discuss the decision not to prosecute Stephen Chledowski.[1]

I have chosen to begin with the standing court martial for James Topp for a couple of reasons.  First, as a result of the public nature of courts martial generally, and the media interest in that specific court martial, there is greater information available to the public.  Second, when that court martial concluded a month ago, there was moderate interest by the news media regarding whether that matter offered any meaningful precedent.  That media interest has been renewed in the context of comparison with the decision by DMP not to prosecute Stephen Chledowski.

As I mention above, my initial intent, a month ago, was to focus on the Topp court martial in order to answer the pertinent questions arising from the public discourse regarding that matter:  What, if any, significance, does the Topp court martial have?  Does it serve as a significant precedent?  What, if anything, can it tell us about the administration of military justice in the CF?  Even in light of the recent news concerning Stephen Chledowski, those questions remain pertinent.

And there are noteworthy observations that can be offered regarding the Topp court martial.  However, the observations that I offer may not be the factors upon which most people likely focused when the court martial concluded.  I suggest that the outcome in the Topp court martial was largely inevitable.  The sentence was not much of a surprise.  Nor is it all that significant as a precedent.

The significance of James Topp’s court martial arises from the way that it can be distinguished from how similar allegations against other CF personnel were handled.  And that comparison exposes arbitrary (or, at least, seemingly arbitrary) administration of the military justice system.

And, before we begin with this discussion and analysis, I will offer a couple of clarifying statements.  First, I have not acted for any of the four above-mentioned persons.  Notwithstanding that I have my own personal views on many of the matters discussed below, I will endeavour, as always, to approach these matters as objectively as possible.  Second, there are many expressions and terms of art used when discussing matters arising from the COVID-19 pandemic and governmental policies arising therefrom.  Some of these expressions present pejorative connotation.  I will endeavour to use neutral terminology in the discussion that follows.

 

Bifurcation of the Code of Service Discipline

These events overlapped significant changes to the Code of Service Discipline – principally, the bifurcation of the Code of Service Discipline under Bill C-77.  Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, SC 2019, c 15, was enacted in 2019.  However, most of the provisions contained within that amending Act did not come into force immediately.  Many key provisions, including significant changes to the Code of Service Discipline, were only brought into force on 20 June 2022.

When James Topp was first charged in February 2022, the Code of Service Discipline concerned service offences (which incorporate other offences under Acts of Parliament, including the Criminal Code), some of which could be prosecuted before either a court martial or a summary trial, and some of which could only be prosecuted before a court martial.

On 20 June 2022, the Code of Service Discipline was essentially bifurcated.  Bill C-77 created service infractions, which can only be prosecuted before summary hearings.  Service infractions have been characterized in the Military Justice at the Unit Level (MJUL) Manual as “… minor breaches of military discipline …” and summary hearings has been characterized as “… a non-penal and non-criminal process designed to address minor breaches of military discipline at the unit level.”  Other characterizations of service infractions and summary hearings have been offered in CF policy documents and public statements.  The merit of such characterizations is best left to future Blog discussions.

These amendments also eliminated the use of summary trials to prosecute service offences – typically, summary trials would be used for service offences that were characterized as minor in nature.  Although summary hearings replaced summary trials as the means of imposing so-called “low-level” military justice, they cannot be used to try service offences.  Service offences may only be prosecuted by courts martial.  Hence, the Code of Service Discipline has been bifurcated: non-criminal service infractions are tried by summary hearings; service offences are tried by courts martial.

The discussion that follows includes reference to the administration of the Code of Service Discipline prior to the bifurcation under Bill C-77.  It is not feasible to hyperlink references to the relevant legislation in force at that time – particularly the QR&O.  However, as this legislation is pertinent to our discussion, I endeavour to provide sufficient explanation of the material law at the relevant time.  Volume II of the QR&O that was in force prior to 20 June 2022 may be found here (albeit, as a single, large PDF document).

 

James Topp

I likely do not need to provide much background to the charges that James Topp faced.  However, if we are to draw lessons from this matter, we must focus on the specific details upon which the charges were based.  James Topp was not charged in relation to his march across Canada.  He was not charged for holding certain views, political or otherwise.  He was not charged for refusing what was essentially mandatory vaccination of CF personnel against COVID-19.

James Topp was charged in relation to his actions in creating, and posting to social media, videos in which he identified himself as a Warrant Officer in the CF and in which he clearly and deliberately criticized the policies and decisions of senior CF and governmental decision-makers.

James Topp was tried by standing court martial – a court martial presided over by a military judge alone (i.e., without a panel as trier of fact).

Ultimately, James Topp faced a total of four charges at court martial.  Charges #1 and #2 concerned two distinct videos in which he criticized governmental and CF policies and decisions.  Charges #3 and #4 were characterized as “wearing his uniform incorrectly” – i.e., the wearing of accoutrements for his former regiment, the Princess Patricia’s Canadian Light Infantry (PPCLI), even though, at the material time, he was a member of the Royal Westminster Regiment.  All four charges were laid under s 129 of the National Defence Act (NDA) which prohibits acts, conduct, disorder and neglect to the prejudice of good order and discipline.  This provision can reasonably be described as a “catch all” offence.

On 14 November 2023, Mr. Topp pled guilty charges #1 and #2.  He pled not guilty to charges #3 and #4, which were withdrawn by the military prosecutor at the start of the court martial.  Objectively, charges #3 and #4 were the less serious of the charges.  On 16 November 2023, he was sentenced to a Severe Reprimand and a $4,000 fine.

This was not a matter in which James Topp and his defence counsel contested the facts underlying the charges.  Frankly, it would have been difficult to do so.

Instead, James Topp pled guilty to the two more serious charges, and relied on that factor as one of several mitigating factors advanced by his counsel.  And, when faced by a near certainty of a finding of guilt, that is a sensible approach to take.

This was not a guilty plea accompanied by a joint submission.  Thus, the guidance from the Supreme Court of Canada (SCC) in R v Anthony‑Cook, 2016 SCC 43 did not constrain the discretion of the sentencing military judge, Commander (Cdr) Deschenes.  The military prosecutor argued for a sentence of a Severe Reprimand and a $5,200 fine.  WO Topp’s defence counsel argued for an absolute discharge or, alternatively a low fine.

As of the date of this Blog post – 17 December 2023 – the reasons offered by Cdr Deschenes regarding the sentence have not yet been published on CANLII or the (Acting) Chief Military Judge website.  All that is available is a summary: R v Topp J.F. (Warrant Officer), Docket 202251.  Consequently, any factors addressed in the present discussion are drawn principally from the news reporting relating to this matter.

This was not the sort of misconduct in which an absolute discharge would have been a reasonable outcome.  That outcome would have amounted to a finding of guilt, without conviction.  And, in light of the notoriety and controversy over the videos, it would have failed to satisfy the principles of denunciation and general deterrence.

However, the sentence that was imposed fell below the threshold that would produce a ‘criminal record’.  The offences for which James Topp was found guilty – under s 129 of the NDA – are not Criminal Code offences.  They do not represent the sort of misconduct that is criminalized for Canadian citizens.  But they do represent breaches of military discipline; they are unique disciplinary offences under the Code of Service Discipline.  Under s 249.27 of the NDA, such offences will only give rise to a criminal record under the Criminal Records Act if the subsequent sentence rises above a particular threshold.

The threshold established under s 249.27 of the NDA correlates to the type of sentences that were commonly imposed at summary trials.  These punishments include: reprimand and severe reprimand, a fine of not more than basic pay for one month, and minor punishments.  Provided that an accused is found guilty only of one or more of the offences listed at para 249.27(1)(a) of the NDA and the resulting sentence is limited to one or more of the above punishments[2], the offender would not incur a criminal record.

The fine imposed on James Topp was less than basic pay for one month, calculated on a pro-rated basis at his last rate of pay before he had been released from the CF. (As a member of the Reserve Force, James Topp was not on continuous full time military service.  Consequently, the equivalent of his monthly pay would have to be calculated on a pro-rated basis.)  While I do not know, precisely, James Topp’s seniority in the rank of Warrant Officer before he was released from the CF, it appears that even a fine of $ 5,200 would have fallen below this level.

Consequently, although he stands convicted of two offences under an Act of Parliament, James Topp won’t have a criminal record.

 

Was this a just outcome?

I suggest that this is a just and reasonable outcome in this matter.

CF personnel can contest CF policies.  They can grieve them.  (And I am well aware of the shortcomings of the CF grievance process.)  They may submit complaints to their chain of command.  They can exercise their democratic right to vote for political parties and candidates who champion their preferred policies.  But they do not get to use their uniform and rank as part of a platform to criticize decision-making by senior leaders.

However, for the purposes of the present discussion, I contend that the following factors are incontrovertible:

• James Topp was charged, ultimately, with four charges, all under s 129 of the NDA, and the charges were referred to a standing court martial.
• Two of those charges related to wearing his uniform incorrectly – i.e., contrary to the direction in the Canadian Forces Dress Instruction in force at the material time. These charges were ultimately withdrawn.
• Two of the charges related to the making and posting of videos on social media that criticized CF policies. James Topp pled guilty to these charges, voluntarily.
• During this process, James Topp was represented by counsel – a lawyer, called to the Bar of a Province or Territory of Canada, and who was qualified and licensed to represent clients before courts of criminal jurisdiction[3], including courts martial.
• James Topp appeared before a constitutionally independent military judge presiding over a standing court martial. While the independence of the military judiciary is presently being considered by the SCC, until Canada’s apex court determines the appeals in which that issue has been raised, the present presumption at law, based upon R v Edwards, et al, 2021 CMAC 2, is that military judges are independent.  Certainly, military judges enjoy greater independence than presiding officers before what were summary trials, as well as officers conducting summary hearings (OCSH).
• James Topp had an opportunity to present a defence if he believed that he had a viable defence to his actions. He did not present a defence.  He pled guilty.  And that was also his right in this process.

 

Those who have followed the CF’s management of the impact of the COVID-19 pandemic and vaccination policies, and those who follow this Blog, will undoubtedly be aware of the findings and recommendations (F&R) by Nina Frid, a member of the Military Grievances External Review Committee (MGERC), in relation to a series of grievances by CF personnel who were subject to statutory decisions – up to and including compulsory release from the CF – due to their refusal of vaccination against COVID-19.  [For ease of reference below, I will refer to these as the “COVID-19 vaccination policy grievances”.]

I have commented on these F&R previously.

I have encountered commentary, on social media and elsewhere, that suggests that, in light of the F&R from Nina Frid, James Topp was “right”.

That is a particularly loaded comment and one that should be unpacked a little before we proceed with a discussion of what the James Topp court martial might tell us about the administration of military justice in the CF.

First, as I mention above, James Topp was not charged, and convicted, for any offence relating to his refusal of vaccination.  Ironically, there is an express offence under s 126 of the NDA for refusing vaccination without reasonable excuse.  But the CF, the Chief of the Defence Staff (CDS), the Judge Advocate General (JAG), the Canadian Forces Provost Marshal (CFPM) and the DMP have all shied away from using that offence to enforce compliance with vaccination against COVID-19. We have discussed that issue previously.

Nor was James Topp charged with disagreeing with that policy.  He was charged with expressly and publicly criticizing senior CF and governmental decisions and policies while clearly identifying himself as a CF member.  And even if there is merit to a CF member’s views, that doesn’t alter a prohibition on public criticism of CF policies in that manner.

Moreover, the mere fact that a MGERC member has issued F&R on a particular issue does not mean that those F&R are correct at law.  It doesn’t even mean that the F&R are reasonable.  I have encountered F&R from the MGERC that are adverse to a client’s interests and which are consistent with the chain of command’s perspective.  Such F&R are often subsequently adopted by the final authority (FA) in the CF grievance process.  That doesn’t immunize the eventual decision – even where it is based upon MGERC F&R – from judicial review.  The Federal Court has found that FA determinations of grievances, which are based upon and/or adopt MGERC F&R, were unreasonable or unfair, or both.  (For a couple of recent examples of an unreasonable decision by the FA, relying upon MGERC F&R, see: Mousseau v Canada (Attorney General), 2016 FC 1414 and Hoffman v Canada (Attorney General), 2023 FC 1103).

That said, I would also suggest that there are a number of judgments at the Federal Court in which the FA declined to adopt MGERC recommendations to provide some form of remedy for a grievor, and the Federal Court subsequently found the FA determination to be unreasonable: e.g., Denneboom v Canada (Attorney General), 2021 FC 531.  MGERC F&R are not binding upon the FA; but, where the FA derogates from the F&R, the FA must provide reasons for doing so (and the reasons must be ‘reasonable).

My point is simply that, like some FA decisions, some MGERC F&R have been unreasonable.  And the circumstances in which we can identify such errors are limited to the grievances in which a CF grievor has the will, capacity, and determination to seek judicial review of an asymmetrical process that favours the Crown at every step.

And the F&R from Nina Frid regarding the COVID-19 vaccination policy grievances represent a fairly complex dynamic.  It would be an over-simplification to suggest that the F&R represent a determination of the ‘constitutionality’ of the CF’s policy.  The grievances – and, therefore, the F&R from the MGERC – focus as much (if not more) on the manner in which CF leadership reacted to ‘vaccination refusals’ and how CF decision-makers exercised their statutory duties, powers, and functions, as they are about whether the CDS policies, generally, complied with the Canadian Charter of Rights and Freedoms (Charter).

Moreover, the F&R are just that – findings and recommendations.  They do not represent a determination of the grievances.  Despite the odd erroneous reference to “MGERC decisions” in judgments from the Federal Court, the MGERC is not the decision-maker who “determines” the grievances.  That falls to the FA.  Nor do the F&R represent a binding judgement of a court of competent jurisdiction.  Undoubtedly, such litigation will follow in due course.

The MGERC F&R from Nina Frid regarding the COVID-19 vaccination policy grievances do not represent a binding determination that the CDS policy on vaccination against COVID-19 was “unconstitutional”.  The MGERC F&R certainly do not represent a determination that James Topp was correct to oppose the CDS policy in the public manner that he used.  Ultimately, he was charged with unambiguously and publicly criticizing governmental and CF decision-makers and policy makers while clearly identifying himself as a serving CF warrant officer.  That is a markedly distinct issue.

 

Not everyone had been treated the same …

That said, James Topp’s circumstances can be distinguished from that of other CF personnel who have been publicly critical of CF policy and senior CF decision-makers.  And the people from whom James Topp and his circumstances may be distinguished fall into at least two distinct groups:

• Those who have been publicly critical of CF policy (often in relation to COVID-19) and who have been charged under the Code of Service Discipline, but who did not benefit from trial before a court martial; and
• Those who have been publicly critical of CF policy and have faced no disciplinary consequences.

And we can learn a lot about how the Code of Service Discipline and military justice are administered by examining those distinctions.

 

OCdt Laszlo Kenderesi: A similar comparator

James Topp was not the only CF member prosecuted at court martial for publicly criticizing CF or governmental policy relating to COVID-19 and vaccination.  Many will likely recall the circumstances involving OCdt Laszlo Kenderesi, who delivered a bizarre speech at a rally organized by groups that opposed governmental policies relating to curtailing the spread of COVID-19.

This court martial was reported at R v Kenderesi, 2022 CM 4012, and additional details are available on the (Acting) Chief Military Judge website: Docket 202158.  It was also the subject of some reporting by the news media.

Like James Topp, OCdt Kenderesi was charged under the Code of Service Discipline, and eventually faced prosecution before a court martial.  However, OCdt Kenderesi faced three distinct charges, two of which were charged “in the alternative” to the other:

• Charge 1: s 81(b) NDA, endeavoured to persuade another person to join in a mutiny;
• Charge 2: s 92 NDA, behaved in a scandalous manner unbecoming an officer (alternate to chare #3); and,
• Charge 3: s 129 NDA, conduct to the prejudice of good order and discipline (alternate to charge #2).

 

Like James Topp, OCdt Kenderesi plead guilty, but not to all the charges laid.  He pled guilty to charge #3 – which fell under the same section of the NDA as the charges to which James Topp pled guilty.  As in the Topp court martial, the military prosecutor withdrew the other charges (one of which was charged “in the alternative” to charge #3). Like James Topp, OCdt Kenderesi presented several mitigating factors, and the military prosecutor highlighted aggravating factors that related to the impact on morale and efficiency of the CF.

Like James Topp, Mr. Kenderesi was a member of the Reserve Force; OCdt Kenderesi was a member of the Cadet Organizations Administration and Training Service (COATS) sub-component of the Reserve Force.  He had previously been an NCM in the Primary Reserve sub-component.  At the time of his misconduct, James Topp was an NCM in the Primary Reserve sub-component and had previously been a NCM of the Regular Force.

James Topp had been released from the CF prior to his court martial.  It is not clear if OCdt Kenderesi had been released from the CF prior to his court martial; however, at sentencing, the military judge observed that OCdt Kenderesi had been on “non-effective strength” or “NES”[4] since 2013.

And OCdt Kenderesi received a similar sentence for his offence under s 129 of the NDA: a severe reprimand and a $4,200.00 fine.  However, this was the product of a joint submission by defence counsel and the military prosecutor under R v Anthony‑Cook.

OCdt Kenderesi likely avoided a criminal record through this joint submission.  The offences under sections 81 and 92 of the NDA do not fall within the scope of s 249.27 of the NDA and conviction for those offences would have led to a criminal record.  As we discussed above in relation to James Topp’s guilty plea, charges under s 129 of the NDA fall within the scope of that provision.  And, while I do not know precisely what OCdt Kenderesi’s pro-rated monthly basic pay would have been, I am aware that he had previously been a corporal in the Primary Reserve sub-component of the CF and, therefore, when he became an OCdt, he likely retained the level of salary of a corporal.  And his monthly pro-rated basic pay was likely higher than $4,200.00.

If these had been the only examples of such disciplinary response to criticism of CF and governmental policies regarding COVID-19, a casual observer would be justified in concluding that the Code of Service Discipline was applied in a reasonably consistent and just manner.

Although both accused pled guilty, and there was no trial on the facts in either matter, they each had an opportunity to present full answer and defence.  Both were represented by counsel.  Both were given an opportunity not only to test the case against them before an independent and impartial decision-maker, but, once guilt was determined, the sentence was imposed by the same independent and impartial military judge following robust representation and argument from counsel.  Both offenders benefited from the advice and advocacy of trained and experienced legal counsel.

But not all CF critics of the CF’s (and government’s) policies benefitted from these safeguards of a just and fair outcome.

 

Not everyone gets a court martial …

Some of you may recall brief reporting on disciplinary action taken against Aviator (Avr) Riley MacPherson, of 19 Wing Comox in British Columbia[5].  Avr MacPherson also posted a rather short video on social media of himself voicing support for “anti-vaccination protests”.  Objectively, Avr MacPherson’s video was not as long or inflammatory as that of James Topp and certainly not as inflammatory as OCdt Kenderesi’s recorded appearance on a public stage.  In fact, Avr MacPherson’s video was inarticulate and nearly incomprehensible.  It was a very short and very odd video.

Avr MacPherson’s circumstances differed in another notable manner: he was tried by summary trial and was expressly denied an opportunity to elect trial by court martial.  And that was problematic.

On 11 May 2022, in the context of reporting on the charges against James Topp, Lee Berthiaume of the Canadian Press reported that Riley MacPherson was also charged under s 129 of the NDA and, after he was found guilty at a summary trial – which is manifestly not conducted before an independent and impartial decision-maker – was sentenced to a fine.  Lee Berthiaume also reported that Department of National Defence spokespersons also indicated that six other CF members were under investigation for similar criticism of government policy, but greater details were not forthcoming.  And that lack of information was a consistent refrain in these matters.

Some may be quick to assert that the video by Riley MacPherson was not as serious because he was of lower rank and the video was not promulgated as widely; consequently, proceeding via summary trial does not represent an unjust or improper response.

However, while those factual conclusions may be accurate, this assertion has two fundamental flaws.  First, it is incorrect at law.  Second, it would also represent a conceptually indefensible rationale when one considers the circumstances of Major Chledowski.  He was senior in rank to the other three above-mentioned CF personnel, and his video did achieve notoriety.  Where was his court martial?  And we will return to the decision regarding Major Chledowski – but, first, let’s dive a little deeper into what transpired with Avr MacPherson, and why.

Whether or not one considers Avr MacPherson’s transgression to be minor, within the context of the prevailing law at the time he was entitled to an election for court martial.

I suggest that Avr MacPherson did not receive an election for court martial because of: (a) a desire by his chain of command to deprive him of an opportunity to make full answer and defence before an independent and impartial decision-maker; and, (b) the incorrect interpretation of article 108.17 of the Queen’s Regulations and Orders (QR&O), which was in effect at the material time.

Prior to the bifurcation of the Code of Service Discipline on 20 June 2022, the CF chain of command consistently demonstrated a manifest desire to avoid resolving disciplinary allegations via court martial.  Presumably, from the perspective of the chain of command, courts martial took too long and those darned lawyers in Defence Counsel Services had the temerity to raise legal defences for their clients.  And don’t get me started on those independent and impartial military judges who expect the chain of command and military prosecutors to prove their case beyond a reasonable doubt based upon evidence and reasoned legal principles.

And the Office of the JAG (OJAG) demonstrated an increasing willingness to give the chain of command the legal advice that the chain of command wanted, rather than the legal advice that it needed.

The air of permissibility by the OJAG manifested in the misinterpretation of art 108.17 of the QR&O, which was in force at the material time.  This particular provision has been the subject of previous discussion in this Blog:

Some Observations on ‘Military Justice’ at Summary Trial, 25 May 2022

Noonan v AGC, 2023 FC 618 – An unsurprising result and its second-order implications, 5 May 2023

 

While those previous posts offer a robust explanation of the relevant issues and legal principles, some explanation here would aid in our present discussion.

Article 108.17 of the QR&O, which was repealed on 20 June 2022 when the Code of Service Discipline was bifurcated, set out the circumstances when the right to elect trial by court martial must be offered to a CF member charged under the Code of Service Discipline, and when it may be withheld.  The relevant portion of the provision, for our present discussion, stated:

(1) An accused person triable by summary trial in respect of a service offence has the right to be tried by court martial unless:

(a) the offence is contrary to one of the following provisions of the National Defence Act:

85 (Insubordinate Behaviour),

86 (Quarrels and Disturbances),

90 (Absence Without Leave),

97 (Drunkenness),

129 (Conduct to the Prejudice of Good Order and Discipline), but only where the offence relates to military training, maintenance of personal equipment, quarters or work space, or dress and deportment; and

(b) the circumstances surrounding the commission of the offence are sufficiently minor in nature that the officer exercising summary trial jurisdiction over the accused concludes that a punishment of detention, reduction in rank or a fine in excess of 25 per cent of monthly basic pay would not be warranted if the accused person were found guilty of the offence.

[emphasis added]

 

Article 108.17 of the QR&O existed for over 20 years, following the enactment of Bill C-25 in 1998.  Most of the elements of Bill C-25 came into force in 1999.  Then, apparently around 2019 (at the latest), a problematic interpretation of the provision, as it related to charges under s 129 of the NDA, appeared to come into fashion in the OJAG.  And this problematic interpretation seemed to coincide with a series of judgments at court martial, in which military judges acquitted accused charged under s 129 of the NDA.  It seems that these independent and impartial decision-makers expected the Canadian Military Prosecution Service (CMPS), headed by DMP, to prove prejudice to good order and discipline prior to finding the accused guilty (perish the thought).

It appears that, around this time, a much more liberal interpretation of art 108.17 of the QR&O emerged and which suggested that a commanding officer (or other “presiding officer”) could withhold an election for court martial for any charge under s 129 of the NDA where the charge related to the accused’s “deportment”, and not, specifically, “dress and deportment”.

The problem with this overbroad interpretation is that all allegations under s 129 could be construed as pertaining to “deportment”.  It would have rendered the provision at para 108.17(1)(a) of the QR&O, as it pertained to s 129 of the NDA, nugatory.  It was also clearly inconsistent with the modern principle of statutory interpretation in Canada, which requires that the words of the legislation be read “… in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27)

Thanks to the judgment in Noonan v Canada, 2023 FC 618, we now have a clear statement from the Federal Court that highlights why the interpretation offered by the OJAG was so fundamentally wrong.  And we can safely say that this was an interpretation attributable to the OJAG, institutionally, and not just isolated legal advisors.  In the course of the summary trials and reviews that lead to the Noonan judgment, multiple legal officers, including relatively senior legal officers, consistently advised decision-makers to apply an erroneous interpretation of the legislation.

And we know this because those same decision-makers repeatedly insisted that they had legal advice to support their decisions.  In fact, in lieu of providing actual transparent and intelligible reasons for refusing to offer an election for court martial, those decision-makers simply asserted “… I have legal advice that says that I can do this …” or words to that effect.

And we also have to remember that the standard of review in Noonan was the much more deferential ‘default’ standard of review of statutory decision-making: reasonableness.  The decisions to deprive the accused of the right to elect trial by court martial were not just incorrect at law, they were unreasonable.  And, in the context of CF statutory decision-making, that is not a particularly high threshold to meet.

And none of this ought to have come as a surprise to anyone.  Frankly, I remain baffled regarding how any government lawyer thought that the problematic interpretation of art 108.17, upon which decision-makers relied consistently in the last few years that summary trials were permitted under the NDA, was a reasonable or correct interpretation of the provision in light of the modern principle of statutory interpretation followed in Canada.  This is reinforced by my belief that this perplexing interpretation only seems to have arisen in the last few years.  The problematic interpretation of art 108.17 that was reviewed in Noonan does not appear to be the same interpretation applied by the OJAG since 1999.  Admittedly, there is no true transparency regarding how that provision was interpretated and applied over the 23 years that it existed.  Only the JAG is in a position to explain that dissonance, and I doubt very much that the current JAG is inclined to do so.  Consequently, and unfortunately, we are left to speculate.

And, although the conclusions that I offer here are, to an extent, speculative, I believe that I can offer some reasoned analysis behind such speculation.

First, I contend that this misinterpretation of art 108.17 of the QR&O was applied because the decision-makers involved – and, perhaps more significantly, their legal advisors – were aware that, at least initially, they controlled the process.  They controlled the summary trial process, including the decision not to offer election for court martial.  They also controlled the review process.  And, before a CF member could bring the issue before a truly independent and impartial decision-maker – i.e., a Federal Court judge – the CF member would first have to exhaust the review process.

All things considered that is not as daunting as what a CF member faces with “administrative decision-making” (i.e., statutory decision-making under the NDA outside of the Code of Service Discipline).  If a CF member wishes to challenge an “administrative decision”, the CF member must first exhaust the “adequate alternative remedy” that is the CF grievance process.  And that can take years.  And I do mean years: to my knowledge, the oldest grievance currently in the CF grievance process will be 18 years old in March 2024.  If it were a sentient being with Canadian citizenship, it could vote in the next election.

And that tends to call into question the adequacy of that alternative remedy.

However, decisions under the Code of Service Discipline are expressly exempt from the CF grievance process by virtue of art 7.03 of the QR&O.  (Curiously, omissions and acts under the Code of Service Discipline are not expressly mentioned in that provision, even though a CF member may grieve a decision, act, or omission in the administration of the affairs of the CF.)

But CF decision-makers and their legal advisors must surely have contemplated the possibility of a judicial review of the decision to withhold, improperly and unlawfully, the right to elect trial by court martial.  So why did they persist with an interpretation that any reasonable person would conclude is problematic?

I contend that there are likely two related factors for such impunity.  First, the accused would require sufficient legal knowledge or acumen to understand that this interpretation was incorrect and unreasonable.  Second, the accused would have had to have challenged the incorrect interpretation with sound legal argument.  Third, they would have required the resolve and capacity to pursue such a challenge to judicial review if necessary, including the financial capacity to retain counsel.

In light of the nature of judicial review, the steps that an accused CF member took during a summary trial and subsequent review were materially important to any subsequent application for judicial review.  Judicial review is not an appeal.  And it is certainly not a de novo hearing of the matter.  It is a review of the reasonableness and fairness of a statutory decision-maker’s decision(s).  Consequently, anyone challenging that decision on judicial review must demonstrate how they challenged the decision at first (or second) instance.  The same is presently true regarding summary hearings, which replaced summary trials.

In other words, a CF member accused of an offence under s 129 of the NDA and tried by summary trial without being offered an election for court martial, would have had to have challenged this jurisdictional and procedural error at the summary trial and, at the very least, on review.  Had the CF member only challenged the jurisdiction of the presiding officer for the first time at judicial review, without having raised it to the presiding officer or review authority, the CF member would likely fail on judicial review.

Most CF personnel charged and tried by summary trial are not lawyers.  The CF decision-makers who improperly and unlawfully withheld the right to elect trial by court martial aren’t lawyers either, but they receive legal advice, free of charge, from the OJAG.  And it is appropriate for statutory actors to have access to free legal advice in the exercise of their statutory duties, powers, and functions.  This, presumably, assists in ensuring that the decisions are lawful and reasonable and, thereby, presumably contributes to the confidence that the Canadian public and CF personnel may have in the military justice process.  And we know that they received legal advice in these circumstances – heck, they were falling over themselves insisting that their decisions were predicated upon legal advice from the OJAG (even though they were less willing to explain the analysis upon which the decisions were based).  That said, a problem arises where that legal advice is incorrect or unreasonable.

In contrast, the CF personnel accused of service offences are not, initially, the recipients of profound and detailed legal advice.  True, if they are prosecuted by court martial, they are entitled to representation (and advice) from Defence Counsel Services, free of charge.  But that right of access to a court martial lay at the very heart of this issue.  And, until a matter is referred to court martial, the advice from Defence Counsel Services is very limited in scope.

And this is understandable.  At any given time, the number of full-time defence counsel at Defence Counsel Services ranges between 6 and 10 legal officers.  There is insufficient time for them to provide robust advisory services to every CF member charged with an offence (or, now, an infraction) while also providing robust defence of CF personnel prosecuted at court martial.

There is a “Duty Defence Counsel”, but the service from this duty counsel is limited to fairly generic advice relating to matters such as the right to remain silent, and other rights on arrest.  When a CF member is facing a summary trial – particularly where the right to elect court martial has been withheld unreasonably and unlawfully – the “Duty Defence Counsel” might be able to provide some basic advice regarding the interpretation of the law.  But this likely won’t be as comprehensive as the advice the chain of command receives from their unit legal advisor (and with the support of the entire OJAG).  Again, in light of the context, it would be unreasonable to anticipate robust legal advice for every caller.

Consequently, if an accused wished to obtain comprehensive legal advice in support of an argument why the accused was entitled to a right to elect trial by court martial, the accused was likely going to have to retain private counsel.  And, in light of the haste with which summary justice is delivered in the CF, the accused will have to act quickly to identify counsel who may be in a position to provide such advice.  The counsel will have to be familiar with the Code of Service Discipline.  And outside of the OJAG there are not many who fit that description.  Sure, there are retired legal officers; however, many of those do not go into private practice.  Many obtain other government positions, or they pursue academic endeavours, or they retire altogether.

And even if the accused CF member realizes in short order the benefit of retaining private counsel and is able to find counsel who is both knowledgeable in this field and available to be retained, the accused CF member has to have the financial wherewithal and desire to retain such counsel.  Even where counsel charges reduced rates, it is not an inexpensive endeavour.

I contend that the CF generally, and the OJAG specifically, pursued a policy of measured impunity based not upon a reasonable or principled interpretation of art 108.17 of the QR&O, but upon the expectation that it was unlikely that a CF member would successfully challenge their problematic interpretation.  And this low likelihood was not predicated upon the merit of the interpretation of art 108.17 applied by the CF based upon advice from the OJAG, but on the cumulative practical barriers to such challenges.

The affected CF member would have had to have challenged the disingenuous interpretation of art 108.17 from the outset.  To do so, the CF member first had to realize that the interpretation was predicated upon problematic statutory interpretation.  And the CF member would likely have drawn this conclusion only if the CF member had such knowledge or sought out advice from an appropriate legal advisor.  That would have required the presence of mind to do so, and, ultimately, the willingness to devote financial resources to such advice.

And, even if a CF member did so, it was likely that the CF and OJAG would maintain their interpretation of art 108.17 of the QR&O, obliging the CF member to seek judicial review.  I can make this assertion because that is precisely what they did.

And let’s face it: a CF member who is facing a fine of no more than 25% of their basic pay for one month will face a chilling effect when contemplating the cost of private legal counsel.  And that assumes that the CF member will find counsel who can provide timely legal advice on a relatively obscure Code of Service Discipline legislative provision.  And the cost of counsel increases when one considers the subsequent necessity of pursuing judicial review of the review authority’s decision.

Eventually, someone did.  Actually, a few ‘someones’ did.  And they were successful.  But, by then, the Code of Service Discipline was bifurcated, and the right to elect trial by court martial became irrelevant.  (There remain problematic aspects of the prosecution of service infractions before summary hearings, and which may merit review by the Federal Court, but those issues are best addressed in a future Blog post.  And they will be.)

Consequently, I contend that much of the decision-making behind whether a CF member would benefit from court martial or would be limited to a summary trial without any right to elect court martial, boiled down to an analysis of what CF statutory decision-makers believed they could accomplish without significant legal challenge.  Put more colloquially, if cynically, the relevant CF decision-makers pursued the process that they believed they could “get away with” using, rather than complying with the relevant law.

In in the case of Avr MacPherson, his chain of command clearly believed that they could get away with depriving him of the right to court martial from which James Topp and Lazlo Kenderesi benefitted.

And then there is the circumstances regarding Major Stephen Chledowski.

 

Some people did not face prosecution at all …

On Friday, 15 December, 2023, David Pugliese reported that DMP would not be pursuing a prosecution of Major Stephen Chledowski in relation to an inflammatory video that he posted nearly two years ago.  In this video, Major Chledowski, an artillery officer at CFB Gagetown, posted a video of himself in uniform, criticizing governmental policy relating to COVID-19, and even apparently calling for CF personnel to “rise up”.  His video was posted roughly contemporaneously with James Topp’s first video.

In the archetypically vague manner that has become a hallmark of such decisions by DMP, National Defence spokesperson Andrew McKelvey wrote in an email: “Following an assessment by the Director of Military Prosecutions, it was determined that charges would not be preferred for court martial … In this case, the Canadian Military Prosecution Service determined that there was insufficient public interest to justify proceeding with charges.”

That seems odd.  There certainly seemed to be public interest at the time.

McKelvey added: “Appropriate steps were taken regarding this situation …”, but he noted that information could not be released as it was protected under the Privacy Act.

That’s convenient.

In light of no meaningful comment from DMP or any other actor within the CF, we are left to speculate.

And, if you’ve been paying attention, we are often left to speculate.  And that’s a big part of the problem.

I suggest that part of the answer for which we are searching is offered by some of the other factors reported by Mr. Pugliese.  Stephen Chledowski was released from the CF on 20 July 2022.  The reason for the release is also protected by the Privacy Act.

The news that Stephen Chledowski would not be prosecuted was met with outrage in some quarters.  James Topp’s lawyer appeared to suggest that a double-standard was involved and asserted: “I am disappointed that the Director of Military Prosecutions didn’t treat James Topp fairly.”

I disagree with the latter assertion.  James Topp was treated fairly.  He received an opportunity to make full answer and defence.  Indeed, prior to the conduct of his court martial, his lawyer commented publicly that they planned to call expert witnesses to question the need and efficacy of the CF’s vaccine requirement, stating: “It opens the door for us to call witnesses about the decision to charge him … It opens the door for us to call experts on whether or not there was any science behind the mandate.”  There was talk of calling the CDS to oblige him to explain his policy.

Instead, James Topp pled guilty to two of the four charges laid against him.  As I mention above, that was a prudent course of action, as it permitted him to demonstrate contrition through his guilty plea.  In response, DMP sought a reasonable sentence, and one that would not have given rise to a criminal record.  Even then, the military judge selected a sentence that fell between what the military prosecutor and the defence were seeking.

Suggesting that James Topp was not treated fairly because another person was not prosecuted ignores the actual process and factors relevant to James Topp’s matter.  It is akin to suggesting that it is unfair to stop one motorist for speeding when other motorists were speeding.  It may give rise to a cognitive dissonance, but it does not mean that the person who is stopped and who receives a speeding ticket is treated unfairly.

Arguably, in the grand scheme of what transpired, the person who was not treated fairly was Aviator Riley MacPherson.  He was the one who was unlawfully denied the right to elect rial by court martial.  And, objectively, his was the conduct that was the least egregious of the four people discussed in the present Blog post.  And there were quite likely other factors in his matter that would have suggested that the Code of Service Discipline should not have been used in his matter.  But, because of how his matter was handled, the Canadian public will never know.

However, the difference between what James Topp and Stephen Chledowski each faced certainly gives rise to the appearance of a double-standard in the administration of military justice.  And, again, a big part of the problem is the lack of transparency in DMP’s decision-making and the reliance on trite and vague justifications.

And, while we will explore this double-standard in greater detail below, I offer an observation for those who are inclined to suggest that these specific matters, concerning public criticism of CF policies relating to COVID-19, are indictive of a double-standard that senior officers always avoid consequences of their actions.

Anyone observing military justice over the past few years will inevitably have noticed several senior officers who have had their reputations dragged through the mud, and, in many cases, were never presented with an opportunity to defend themselves in a meaningful manner.

Some, like Major-General Dany Fortin, did get that opportunity.  Nevertheless, his career was still abruptly halted.  We know about these matters because they were attractive fodder for the news media.  And a big part of the reason why news media focused on these matters was the rank of the people involved.  And some of the complainants provided unchallenged interviews while dressed in uniform.  While James Topp’s matter attracted notoriety, that was due, in part, to his subsequent actions.

The matters for which we have markedly less visibility are often those that concern more junior personnel.  I have explained previously that the notoriety in certain cases – such as MGen Fortin – have resulted in ensuring that the “accused” benefitted from greater procedural and substantive safeguards.  And that notoriety was often, but not exclusively, driven by rank.

In contrast, many, often more junior, personnel have been subject to adverse decision-making that was not as transparent, fair, or reasonable as a prosecution before a court martial or civil court of criminal jurisdiction.  These personnel were the subject of Administrative Reviews or similar “administrative” actions that, nevertheless, presented significant adverse outcomes.  Ironically – in light of the outrage that has recently been expressed regarding DMP’s decision not to prosecute Stephen Chledowski – it was often the absence of a prosecution under the Code of Service Discipline that gave rise to a lack of fairness for many of these junior personnel.  And, oddly, there seems to be far less outrage about those circumstances.

I suggest that it is a marked over-simplification to conclude that these select matters demonstrate conclusively that senior officers benefit from advantageous exercise of discretion under the Code of Service Discipline specifically, or in the administration of the affairs of the CF generally.  Rather, I contend that the notoriety of an incident or issue, in particular the scrutiny by news media, will often drive decision-making.

I do concede, however, that the more senior a CF member, the less likely the CF member will be the subject of unfair or unreasonable adverse decision-making.  And this is due, in large part, to the exponential reduction in the number of statutory decision-makers who may exercise adverse decision-making regarding said CF member.  However, if you think that Lieutenant-Colonels, Commanders, Colonels, Captains (Navy), and even GOFO are not subject to unfair and unreasonable decision-making, then you haven’t been paying attention.

 

Double Standard?

The public is aware of four CF members (all of whom are likely now former CF members) who were charged under the Code of Service Discipline for public criticism of the CF’s COVID-19 vaccination policies (and I will identify them by the ranks that they held when they made their public criticism):

• Major Stephen Cheldowski
• OCdt Lazlo Kenderesi
• WO James Topp
• Aviator Riley MacPherson

 

Arguably, the order offered above, in which the four are identified in descending order of rank, also reflects the relative egregiousness of the videos.  Major Cheldowski appeared to call for insurrection and/or mutiny.  So did OCdt Kenderesi, who was charged with endeavouring to persuade another person to join in a mutiny and scandalous conduct by an officer (although he plead guilty to a single offence under s 129 of the NDA).  WO Topp did not call for insurrection, but he did publish two videos that were critical of CF and governmental policy.

All three of these CF personnel deliberately offered public commentary, in uniform, that was critical of governmental and CF policy.  OCdt Kenderesi’s actions were different insofar as he made a public speech that someone else recorded and posted, whereas Major Chledowski and WO Topp deliberately created and posted a video themselves.  Avr MacPherson did so as well, although his was much shorter, less widely promulgated and, frankly, markedly more incoherent.

In fact, none of the comments of any of these personnel was particularly coherent or persuasive.  And I do not make this statement to demean them.  However, in the context of the discussion of the seriousness of the misconduct attributed to each person, it is pertinent to identify the potential impact of the statements that constituted the misconduct.  And none of these public statements was particularly persuasive, or even particularly coherent.  This factor is relevant when one of the ‘public interest’ concerns will necessarily be the potential impact of the public statements.  That factor is indicative of the severity of the action, and the consequent punishment that is necessary to meet principles and objectives of sentencing, including denunciation and deterrence.

Major Chledowski’s video was bizarre and inarticulate.  Most of the reaction that I encountered from former and serving CF personnel ranged from embarrassment to incredulity to, frankly, dark humour about how surreal it was.  Similarly, most of the reaction to OCdt Kenderesi’s speech was in a similar vein.  I encountered very little reaction to Avr MacPherson’s video, which was markedly inarticulate.

Of all of the videos, that of James Topp was the most articulate; however, it was markedly stilted and I suggest that it was not particularly persuasive, unless the viewer already shared his views.

It is understandable that many people – particularly former or serving NCM – would view the outcome of the allegations against Stephen Chledowski as representing a double-standard.  Of the four CF members, of whom the public is generally aware, who offered public commentary (in uniform) that was critical of CF and governmental policy regarding COVID-19, the one person who was not prosecuted was the senior-most person (the only commissioned officer) and the one who, objectively, made the most egregious (if markedly inarticulate) comments.

Were one to examine these matters in isolation, it would certainly look like a double-standard.

One of my initial reactions was to recall a circumstance when I was a young platoon commander deployed on my first “CDS-approved operation” nearly 30 years ago.

[OK … put your helmets on …]

I was deployed as a platoon commander with the 1 PPCLI Battle Group deployed to Croatia on Operation HARMONY, Roto 4.  This was a peace support operation authorized by the United Nations Security Council under Chapter VI of the UN Charter.  [And all respect to Lew McKenzie, there is no such thing as “Chapter 6 ½”.]

As happens on such deployments, people had what are often characterized as “negligent discharges”.

When that happened – but not every time it happened – the person who “… failed to handle their weapon in a reasonable and prudent manner …” would typically be charged under s 129 of the NDA and would be tried by summary trial.  We won’t get into whether the right to elect trial by court martial was offered.

Typically, when they were found guilty – and I will leave it to you to speculate on whether anyone wasn’t found guilty – they would almost always be fined $1400.00.  This amount was roughly equivalent to what most personnel (with limited overseas or deployed service) would receive in tax-free allowances as a result of the deployment.

$1400.00 was the “going rate”.  And, as an aside, having a “going rate” is not actually consistent with the principles of sentencing under the Code of Service Discipline.  While the principles of sentencing include the consideration that “… a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances …”, that is but one of several principles, and circumstances will often vary.  But I digress.

As would be expected, most people who had “negligent discharges” were NCM, typically junior NCM.  The “law of averages” would suggest that this would be typical.  A Battle Group of over 1000 people had, maybe, 60 officers in total.  NCM below the rank of Sergeant comprised at least half the composition of the Battle Group.

At one point during the deployment, an officer – a Major – had a “negligent discharge” with his sidearm, a Browning Hi-Power.  He was not charged.  Instead, it was announced subsequently that he had made a “voluntary donation” to the Regimental Fund of $1400.00.  In fact, I distinctly remember the ‘O’ Group in which our company commander announced this outcome, and I noted the satisfactory tone of his voice.

All good, right?

Not so much.  I distinctly remember my own reaction.  My first thought was: “Yeah … that’s not going to play well.  The troops are going to perceive that this is a double-standard, because that is precisely what it is.”  I don’t know if my reaction was obvious to those around me – I’ve never had much of a ‘poker face’.  As you can expect, that is precisely how the troops received the news.

And that is because that is precisely what it was.

I don’t know what the chain of command was thinking.  Maybe they thought it was a ‘just’ outcome.  Maybe they were concerned about the feasibility of conducting a summary trial.  After all, a commanding officer or delegated officer could preside over the summary trial of an NCM below the rank of Warrant Officer.  A Major could only be tried by a superior commander.  And the only superior commander was the Contingent Commander in Knin.  And that would have been difficult to arrange.

OK.  Math is hard. But that’s no reason not to apply the law consistently.

I still think that the likely reason was that the chain of command at the time took the position that “… charging an officer is not the thing to do …”.  And, if that was the rationale, it was not a proper exercise of discretion.

I doubt that we will ever know why that decision was made, and, again, that lack of transparency is part of the problem.

The Code of Service Discipline is not always applied consistently.  And when it isn’t, people will want explanations, particularly those who perceive that they are in the demographic that is treated unfairly or doesn’t receive the same benefits as others.  And, when adequate explanations are not forthcoming, people will perceive the exercise of discretion as arbitrary.

 

A lack of transparency

A key factor in the administration of military justice is the exercise of discretion.  I have offered commentary previously on the exercise of discretion:

Discretion is the Better Part of Valour Statutory Decision-Making, 12 October 2020

Discretion is the Better Part of Valour Statutory Decision-Making, Part II: Discretion and the Code of Service Discipline, 13 October 2020

Discretion is the power to decide between two or outcomes.  It can be viewed as the grease or lubricant that permits the military justice system (or, indeed, any statutory process) to function effectively.  It permits statutory actors and decision-makers to react to the variety of factors that affects the functioning of whatever statutory process is being applied.  If there were no discretion, the process would be excessively rigid.  It would be unmanageable.  And that rigidity could also give rise to injustice (whether actual or perceived).

But such discretion must be exercised reasonably, fairly, lawfully, and in the public interest.  When discretion is abused, policy makers – or even the courts (though, rarely) – can take action to fetter the exercise of discretion.  An obvious example within the criminal justice system is the investigation and prosecution of charges relating to intimate partner violence (IPV).  Most jurisdictions in Canada (i.e., provincial Attorneys General and Solicitors General, or their equivalents) have implemented policy direction that obliges police or other statutory actors to lay charges, and to prosecute charges, provided that there is any reliable evidence upon which charge layers may rely.  In effect, both investigative and prosecutorial discretion has been fettered in light of past examples of police and prosecutors exercising their discretion is what was viewed as a problematic manner.  And this fettering of discretion has not been challenged successfully under the Charter. One could argue that this is less about fettering discretion and more about requiring people to act when they have evidence upon which to act.  (There is much that may be said about such policies, but that is not the central topic of the present Blog post.)

The suggestion that DMP cannot exercise prosecutorial discretion in these, or other, matters is problematic if it is predicated upon vague claims of arbitrariness.  Even if the decision not to prosecute Stephen Chledowski had been made before the prosecution of James Topp, that decision would likely not have presented Mr. Topp or his defence counsel with a viable basis to claim that the prosecution of Mr. Topp was an abuse of process.

While I am not proposing to conduct a detailed analysis of the law relating to “abuse of process” by prosecutors, the governing case law for such applications is captured in the companion cases of R v Anderson, 2014 SCC 41 and R v Babos, 2014 SCC 16, and amplified by the dissent in R v Hunt, 2016 NLCA 61, which was adopted by the majority of the SCC in R v Hunt, 2017 SCC 25 (Côté J, dissenting).

In particular, I would direct your attention to paras 35 to 51 of the SCC judgment in Anderson, which establishes:

• Crown decision-making can be reviewed in the context of (1) exercises of prosecutorial discretion; or (2) tactics and conduct before the court.
• All Crown decision making is reviewable for abuse of process. However, exercises of prosecutorial discretion are only reviewable for abuse of process.
• In contrast, tactics and conduct before the court are subject to a wider range of review. The court may exercise its inherent jurisdiction to control its own processes even in the absence of abuse of process.
• Prosecutorial discretion is entitled to considerable deference. However, it is not immune from all judicial oversight.
• Reviewing courts have used a variety of terminology to describe the conduct that constitutes abuse of process. In Krieger v Law Society of Alberta, 2002 SCC 65, the SCC used the term “flagrant impropriety” (para 49). In R v Nixon, 2011 SCC 34, the SCC held that the abuse of process doctrine is available where there is evidence that the Crown’s decision “undermines the integrity of the judicial process” or “results in trial unfairness” (para 64). The SCC also referred to “improper motive[s]” and “bad faith” as grounds for scrutiny (para 68).

 

Again, challenges arise from the vague and ambiguous justifications offered by DMP when charges are withdrawn, or when decisions are made not to refer a matter to court martial.  I have discussed this phenomenon before.  The blunt, if not-entirely-satisfactory, reality is that DMP is not required, at law, to offer a robust explanation why charges are not preferred for court martial, or why charges are withdrawn.  At law, the perfunctory justification offered in relation to the charges against Stephen Chledowski – and in relation to so many aborted prosecutions – is sufficient.  And DMP will be well aware of this.  Moreover, DMP is unlikely to provide more robust justification where he is not required to do so.  Offering a more robust explanation provides an opportunity for scrutiny of those justifications.  Undoubtedly, DMP prefers conclusory and perfunctory explanations that are markedly difficult to challenge at law.

Sometimes, however, a more robust justification must be forthcoming.  For example, if DMP decides to substitute a charge preferred for court martial in an attempt to avoid the impact of an appellate decision on jurisdiction, it will take more than a shrug of the shoulders and a vague reference to “prosecutorial discretion” to justify such a decision or action: R v Spriggs, 2019 CM 4002.

That said, in circumstances where DMP opts to withdraw a charge or does not prefer a charge for court martial, an “accused” rights are not impacted in the same manner.  Perfunctory and conclusory ‘reasons’ may be offered without risk of judicial review or scrutiny.  And that is precisely what DMP does … every single time.

While such an approach may be feasible at law, it is less satisfactory for the general public and for the personnel who serve in the CF.  And it risks bringing the administration of justice into disrepute when it becomes the norm.  Even if it does not give rise to traction for immediate legal challenges of DMP’s decisions, there is a tangible risk that it will undermine discipline, efficiency, and morale of the CF.  After all, the military justice system expressly exists to support the maintenance of discipline, efficiency, and morale of the CF: R v Généreux, [1992] 1 SCR 259; R v Stillman, 2019 SCC 40; NDA, s 55.

It is counterintuitive and, frankly, more than a little embarrassing, when decision-making by DMP undermines the very purpose for which the Code of Service Discipline exists.

 

Lessons Learned?

As I said at the outset of what is, admittedly, a languorous meander through select decisions within the Code of Service Discipline, there are some lessons that can be derived from the prosecution of James Topp at court martial.  There are also some lessons that can be learned from the fact that some people were not prosecuted at court martial.  And these lessons may not be the ones that some people might think arise from these matters.

Some of you will recall that the relevant service tribunal that CF decision-makers indicated would be used to try Mr. Topp for his service offences kept varying.  First, he was told that there would be a court martial.  Then he was told that he would be tried by summary trial, without an opportunity to elect trial by court martial (much like Avr MacPherson).  Then, he was finally told (again) that he would be tried by court martial.

At the time that this vacillating decision-making arose, the CF did not offer much in the way of an explanation for the ever-changing status of the relevant service tribunal.  In light of how ridiculous this seems at first instance, the absence of an explanation is not surprising.  However, it does remain problematic.  So, I will attempt to offer an explanation as someone who was not directly involved in the process.

I contend that James Topp was tried by court martial because the CF – specifically, his chain of command and the OJAG – could not rely upon their disingenuous and incorrect interpretation of art 108.17 of the QR&O to deprive him of this election.  There were two likely reasons for this, and both arose from delay in timely action by the relevant decision-makers.

First, when James Topp first presented his videos, the Code of Service Discipline had not yet been bifurcated.  Summary trials could still be conducted.  A summary trial could only be held if a variety of factors were met.  One of those factors I address above: save for five specific offences under the Code of Service Discipline, a CF member charged with a service offence had a right to elect trial by court martial.  And, even then, the context of the allegations must be sufficiently minor that the likely punishment fell below a specific threshold, identified at para 108.17(1)(b) of the QR&O: namely that the maximum penalty would be no more than a fine of 25% of the CF member’s basic pay.

If the presiding officer anticipated relying on punishments that included a fine in excess of 25% of basic pay, reduction in rank, or detention, an election for court martial would have to be given.  In practical terms, what this actually meant was that, if a presiding officer wanted to withhold the right to elect trial by court martial for the enumerated offences (which was often the case), then the presiding officer would have to accept a reduction in powers of punishment.

As we know from our discussion above and previous Blog posts addressing this issue, offences under s 129 of the NDA had an additional caveat.  The right to elect trial by court martial could only be withheld “…  where the offence relate[d] to military training, maintenance of personal equipment, quarters or work space, or dress and deportment …”.  And we know from our previous discussions (summarized above) that the chain of command (and the OJAG) played rather fast-and-loose with the interpretation of this limitation and that they were inclined to interpret “deportment” as extending to pretty much any allegation under s 129 of the NDA.

[Ironically, the two charges that were withdrawn at Topp’s court martial – the charges regarding the improper wearing of his uniform when he wore his PPCLI accoutrements, despite then being a member of the Royal Westminster Regiment – were charges for which the right to elect trial by court martial could reasonably have been withheld.  Those charges very clearly related to “dress and deportment” as envisioned under para 108.17(1)(a) of the QR&O in relation to charges under s 129 of the NDA.]

If that is the case, why did they end up permitting James Topp to proceed by court martial?

First, it appears that they could not get their act together and charge him and proceed before a service tribunal in a timely fashion.  Prior to the bifurcation of the Code of Service Discipline, even where the chain of command could legitimately and lawfully withhold an election for court martial under art 108.17 of the QR&O, there were other relevant limitations – specifically limitation periods – that could apply.  Pursuant to sub-art 108.16(1.1) of the QR&O, in order to proceed, presumptively, with a summary trial, the charge had to be laid within 6 months of the alleged offence, and the summary trial had to commence within one year of the day when the alleged offence took place.  Otherwise, the accused would have to waive these limitation periods, expressly, in accordance with art 108.171 of the QR&O.

In the case of James Topp, his impugned acts occurred in February 2022.  It appears that he was charged not long after he posted his videos.  Certainly, he was charged within six months of the impugned acts. But there appeared to be some delay in proceeding beyond that step.

On 11 May 2022, Lee Berthiaume, of the Canadian Press, reported that James Topp’s privately-retained counsel indicated that Topp had initially been offered an election for court martial, but that this decision was subsequently changed to a summary trial.  The Canadian Press reported that, according to Topp’s counsel, the change meant that not only would the case not be heard by an impartial and independent body, Topp would not be able to bring legal counsel to his hearing.  [Technically, there was not an absolute ban on counsel appearing at a summary trial, but that decision was left to the discretion of the officer presiding over the summary trial.]

On 5 July 2022, various news media again reported (relying on filings from the Canadian Press’ Lee Berthiaume) on comments from James Topp’s counsel, indicating that CF decision-makers had yet again reversed their prior decisions regarding the service tribunal that would be used.   His counsel indicated that CF authorities had again decided that the charges would proceed via court martial.

Topp’s counsel as reported to state: “It’s hard to know what they’re [CF decision-makers] doing, because I don’t think they really know what they’re doing …”.

As an aside, I agree that it was difficult to understand their rationale.  However, I suspect that they knew precisely what they were doing when the flip-flopped.  I suspect that they acted based upon the practical limitations that they faced.

First, it appears that the limitation period at art 108.16(1.1) was likely not a factor behind this decision.  If the impugned conduct had arisen in February 2022 and Topp was charged shortly thereafter, the limitation periods had either been satisfied or could be satisfied.  He was charged less than six months after the impugned misconduct.  And, as of 11 May 2022, when CF authorities indicated that James Topp would be prosecuted by summary trial, there remained ample time to commence the summary trial.

Second, DMP had a track record of disingenuous actions when ‘electable’ service offences were referred to DMP for preferral for court martial.  In some cases, in which DMP did not wish to prosecute select matters – often, where some, but not all, charges were laid under s 129 of the NDA – DMP would “non-prefer” the electable offences and then rely upon (a previous version of) section 165.13 of the NDA to refer the presumptively “non-electable” offences back to the commanding officer for disposal.

Arguably, this mechanism existed so that DMP could refer matters back to the chain of command where the charges would not normally give rise to an election for court martial, but where an election was offered because the chain of command over-estimated the powers of punishment that would be required.  However, a more cynical view of that tactic is that, following an accused person’s exercise of his/her right to elect trial by court martial, DMP then unfairly removed the basis for that election in order to deprive the accused of a fundamental constitutional right.  Unfortunately, that particular tactic was never brought before the scrutiny of the Federal Court before the Code of service Discipline was bifurcated.  And, now, that issue is moot.

It is not clear if that tactic was the reason why James Topp’s charges were, at one point, referred back to a summary trial, and it is doubtful if we will ever know for certain.

It is also unclear from the public record whether James Topp was still a member of the CF (albeit the Reserve Force) in early May 2022, or in July 2022.  This would have been a factor, as a summary trial did not have jurisdiction to try a civilian.  Certainly, as the Topp court martial demonstrates, pursuant to subs 60(2) of the NDA, a CF member remains liable for prosecution for alleged offences committed while subject to the Code of Service Discipline, even if the accused is subsequently released from the CF.  However, the sole service tribunal that can try former CF personnel was (and is) a court martial.

I contend that James Topp benefitted from a court martial – where Avr MacPherson did not – because of two factors.  First, having initially offered him an election for court martial, only to rescind it subsequently, CF decision-makers exposed their problematic decision-making to critical scrutiny.  Frankly, they looked foolish in doing so, and would have looked even more foolish if Topp’s civilian counsel had challenged the decision-making in an application regarding abuse of process.  Second, in light of James Topp’s standing as a member of the Reserve Force, his chain of command faced challenges in compelling him to appear before the summary trial.

Even if Topp was still, technically, in the CF, it is almost certain that he was “Non-Effective Strength” – “NES” – as a result of not being vaccinated.  He likely wasn’t parading with his unit.  He was likely facing administrative action, including Administrative Review, for his refusal of vaccination against COVID-19.  But it was likely that the only way that his chain of command could have compelled him to appear before a summary trial would be to send someone to arrest him.  That would have presented other challenges, not the least of which is the handling of a detainee who was not vaccinated against COVID-19.  Certainly, it would not have presented the kind of ‘optics’ that the CF would have wanted.

Consequently, James Topp, much like OCdt Kenderesi, benefitted from trial by court martial.  He benefitted from a service tribunal presided over by an independent and impartial decision-maker.  He benefitted from a right of representation by counsel.  He could have been represented, free of charge, by Defence Counsel Services.  Instead, he was represented by privately-retained civilian counsel, which was his right.

My point is simply that James Topp benefitted from all the safeguards arising at a court martial.  These safeguards are significant in ensuring a fair and just outcome.

Aviator Riley MacPherson did not benefit from the safeguards at court martial.  He, too, was charged under s 129 of the NDA for the same type of act as James Topp.  He didn’t march across Canada.  He didn’t shake Pierre Poilievre’s hand (at least, not of which I am aware).  But he did, at law, have a right to elect trial by court martial.  But that right was improperly and unlawfully withheld from him.

And I contend that this right was withheld from him because the relevant CF decision-makers knew that they could get away with it.  Unlike James Topp, Avr MacPherson was not represented by private counsel.  Unlike James Topp, his matter was not high profile.  Unlike James Topp, as a member of the Regular Force, Avr MacPherson could be arrested by military police if he went AWOL.

James Topp benefitted from the protection of law in relation to the Code of Service Discipline.

Riley MacPherson did not.

And that shortcoming appears not to resonate with those responsible for the superintendence of military justice.  In fact, it doesn’t appear to resonate with the public either.

What does appear to resonate with many people is that Stephen Chledowski appeared to have “skated” on the allegations or charges that he faced.  And we do not truly know why.

A cynical person might conclude that, since he was released from the CF in July 2022, various CF decision-makers weren’t motivated to prosecute him.  After all, he suffered the same fate as many CF personnel, of various ranks, who have been accused of wrongdoing, but who were not prosecuted under the Code of Service Discipline.  As I have explained previously, several times, the use of “administrative outcomes” – particularly compulsory release – has frequently been used as a disingenuous alternative to prosecution under the Code of Service Discipline.

I have repeatedly encountered circumstances in which a CF member is accused of wrongdoing.  Military police – particularly the Canadian Forces National Investigation Service (CFNIS) – are called upon to investigate.  The reliance upon the CFNIS tends to signal that the allegations are serious.  But no charges are laid.  And, consistent with the “prosecutorial silence” that I describe above, little, if any, justification if offered for why charges are not laid, or, if laid, are not prosecuted.  Instead, the CF member’s chain of command and Director Military Careers Administration (DMCA), rely upon the untested allegations in the military police report (or, often, a summary of the report) to pursue administrative action – often compulsory release under item 5(f) to the Table to art 15.01 of the QR&O.

And, if the CF member doesn’t like it – he or she can grieve the decision.  If the grievor is lucky, the grievance might be adjudicated within 5 years.  But I wouldn’t count on it.  And the Federal Court has consistently demonstrated that it will not intervene in such decision-making.

So, it is not surprising that the CF generally, and the key decision-makers and their legal advisors specifically, rely so significantly on administrative measures as alternative forms of punishment.  That was certainly the rationale behind the DMCA2 Aide-Memoire relating to administrative action for those CF personnel who refused vaccination against COVID-19.  Notwithstanding the protestations of CF decision-makers that this was an administrative process and not intended as punitive action, the content of the DMCA2 Aide-Memoire and the language employed therein contradicts such a characterization.

And, since the actions taken under administrative policies constitute “personal information”, that information cannot generally be disclosed in the same way that action under the Code of Service Discipline may be disclosed.  Indeed, not only may action taken under the Code of Service Discipline be disclosed to the public, it is expected that the Code of Service Discipline (retroactively defined as the “military justice” system under Bill C-77) will function publicly.  This is why we know so much more about what arose with James Topp than we do Stephen Chledowski.

All that we know in relation to Stephen Chledowski’s circumstances is that he was released form the CF.  We do not know whether this was voluntary or compulsory.  If it was compulsory, we do not know the basis for the compulsory release.

And the basis for, or circumstances of, his release may well be relevant to whether it would be in the public interest to prosecute him.  There has been no mention of any relevant medical factors involved in any administrative or disciplinary process relating to Major Chledowski.  It would be speculative of me to comment on any such factors.  But certain medical factors would be relevant to the decisions that have been made.

Unfortunately, the “prosecutorial silence” that has become the hallmark of such matters continues to confound the public interest.

National Defence spokespersons state that such information is protected under the Privacy Act.  And this is generally true.

However, para 8(2)(m) of the Privacy Act does permit disclosure of personal information “… for any purpose where, in the opinion of the head of the institution, (i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or (ii) disclosure would clearly benefit the individual to whom the information relates.”  It’s not clear if this provision was considered.  If it was, then evidently the conclusion was that the public interest did not outweigh the invasion of privacy that would arise.  And that is not necessarily an unreasonable conclusion.

That said, this same provision was presumably the basis upon which the CF issued policy direction back in 2019, which purportedly justified the disclosure of personal information of CF members who were respondents to complaints of sexual misconduct, and who were the subject of “administrative”, and not “disciplinary” action.  Following the adjudication and “resolution” of such matters, CF policy- and decision-makers seemed to have no qualms about disclosing a respondent’s personal information to complainants, despite the fact that they must have understood that, once that information is disclosed to a complainant, the CF (and government) lose any capacity to control the further dissemination of such information.

If we’re concerned about double-standards, further scrutiny of such policies may be warranted.

By the way – that “triple-dog-dare” at the end of my Blog post back in August 2019 still stands.

Also, senior CF decision-makers also don’t appear to be particularly fussed about leaks of personal information and military police investigations concerning various senior officers.  I am therefore inclined to ask: Is the rule of law respected when personal information or information pertaining to Military Police investigations is leaked?  Is the rule of law respected when this happens over and over, and there are no apparent steps taken to investigate those leaks?

I have asked these questions before.  And we are still waiting for an answer.

Ultimately, the decision not to prosecute Stephen Chledowski for his public criticism of CF policy- and decision-makers may well represent a double standard.  Alternatively, there may be valid justification for DMP’s decision.

And I suggest that the principal problem is not the existence of double-standards, but a lack of transparency and intelligibility in decision-making in the administration of military justice.  Decisions are repeatedly being made that appear arbitrary and, in some cases, unreasonable and unfair.  And there is little or no explanation forthcoming from the relevant decision-makers.  And, absent adequate explanation, this apparent arbitrariness and lack of fairness and reasonableness in decision-making is undermining confidence in the administration of military justice.

It risks bringing the administration of justice into disrepute.

 

Concluding thought: Not all criticism of CF decision-makers is punished under the Code of Service Discipline – or at all …

Another distinction can be drawn from the Topp court martial.

As I mention above, James Topp was not charged, tried, and punished because he disagreed with CF (or governmental policy).  He was not charged because he conducted a ‘march across Canada’ in support of his beliefs.  He was not charged for applauding the ‘anti-vaccination’ protestors who descended upon Ottawa in February 2022.

He was charged for knowingly putting on his CF-issued uniform (in one instance), creating a video in which he identified himself as a Warrant Officer of the Canadian Forces and proceeded to criticize governmental and CF policy relating to the COVID-19 pandemic, and then posting that video on social media.  He did this twice, although he was purportedly not wearing a uniform in the second video[6].  In sum, he was alleged to have committed two acts that prejudiced good order and discipline of the CF, by publicly criticizing the senior leadership of the CF.

We now know that Major Chledowski did not face military justice as a result of similar – and, arguably, more egregious – public criticism of CF leadership.

However, can anyone think of any other examples of CF members who have donned their uniform – literally or figuratively – and criticized senior leaders of the CF or decision-making in the administration of the affairs of the CF, but who have not faced disciplinary, or even administrative, action?

I can.  And I will let you ponder that dissonance.

 

[1] I note that all of these people have since been released from the Canadian Forces.  For the sake of brevity and consistency, I will refer to each person by name and, where I employ their rank, I will employ the rank that they held at the time of their misconduct.

[2] When this provision was first introduced, in Bill C-15, the evocatively named Strengthening Military Justice in the Defence of Canada Act, SC 2013, c 24, the original French language version of the provision appeared to be ambiguous about whether an offender would still benefit from the provision if the offender were sentenced to more than one of the punishments.  Consequently, it was amended at article 63 of Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, and, unlike many amendments from Bill C-77, came into force on 21 June 2019.  Specifically, the amendment changed the following wording in para 249.27(1)(a) of the French language version, “… et pour laquelle l’accusé a été condamné à l’une des peines suivantes …”, to “… et pour laquelle l’accusé a été condamné à l’une ou plusieurs des peines suivantes …”.

[3] And, yes, for those inclined to pick fly speck out of pepper, technically his counsel would only be permitted to represent clients before civilian courts of criminal jurisdiction in a province in which the lawyer was licensed to practice law.  My point here is that James Topp was represented before the court martial by licensed legal counsel.

[4] In other words, he had not been parading with, training with, or participating in any paid service with, his unit.

[5] An “Aviator” is a Private who wears the uniform associated with the Royal Canadian Air Force (RCAF) element of the CF.

[6] And, if he was not in uniform, on duty, on a Defence establishment, conducting training, or did not meet any of the other jurisdictional requirements under para 60(1)(c), I would be curious regarding the jurisdictional link pertaining to the charge relating to the video in which he was not in uniform.  I did not see the second video described in the second charge.  But the jurisdictional link remains unclear.