R v Bourque, 2020 CM 2008: The Rule of Law Applies to the Chief of the Defence Staff 

The judgment in R v Bourque, 2020 CM 2008 was handed down on 10 July 2020 but, as of 20 July 2020, had not yet been published on the Chief Military Judge’s webpage or any public database[1].  It is the latest in a standoff between military judges and the Chief of the Defence Staff (CDS) regarding the Code of Service Discipline.

And it highlights the CDS’ ongoing disdain for the rule of law.

That may not come as a surprise to many.  Perhaps what is less obvious, and potentially should be of greater concern, is why the CDS’ institutional legal advisors do not appear to have been more assertive in encouraging the CDS to demonstrate a greater respect for the rule of law.

Rumours continue to circulate that the current government may be considering nominating Jonathan Vance for the position of the Chairman of the Military Committee at NATO Headquarters.

Is a General Officer who demonstrates disdain for the rule of law the right choice for such a position?

And what are the senior legal advisors in the Office of the JAG (OJAG) doing to reinforce respect for the rule of law?

 

R v Bourque

Technically, the Bourque judgment concerned an application by prosecutors serving under the Director of Military Prosecutions (DMP) seeking to dismiss a Charter application brought by the accused.  Counsel for DMP argued that the accused failed to serve them with adequate notice.

The accused challenged the independence and impartiality of the court martial, under section 11(d) of the Canadian Charter of Rights and Freedoms (Charter) by virtue of the CDS’ still extant order, subjecting military judges to disciplinary decision-making by the Deputy Vice Chief of the Defence Staff.  This is an issue that had been addressed in previous judgments (R v Pett, 2020 CM 4002 [Pett]; R v D’Amico, 2020 CM 2002 [D’Amico]).  However, courts martial are statutory courts; they are not ‘section 96’ courts[2] with inherent jurisdiction.  They do not have the jurisdiction to quash an unlawful order.  They can merely find the order of no force or effect for that specific court martial.  That is what happened in both Pett and D’Amico.

But the CDS never revoked the order.

Which means that defence counsel at Defence Counsel Services have been bringing the same application, repeatedly, in courts martial since then, with predictable results.

What is significant in Bourque is that the Military Judge, Commander Sukstorf, gave the CDS the benefit of the doubt regarding whether he was aware of the previous judgments concerning his order, which was inconsistent with the Charter.

This ‘benefit of the doubt’ is understandable.  I would be extremely surprised if the CDS had not been aware of the judgments in Pett and D’Amico in the days following those judgments (which are now 5 months old).  If he weren’t, it would have to have been due to wilful blindness on his part, or an abject failure on the part of the JAG to keep the CDS abreast of significant developments in the Code of Service Discipline.  However, as Commander Sukstorf observed at para 35 of her judgment, there was no evidence before her that the CDS was aware of the orders or had expressly refused to comply with them.  And military judges must be restrained in taking judicial notice of potentially contentious facts.

So, Commander Sukstorf gave the CDS until 1330 hours on 13 July 2020 to rescind the impugned order.  Failure to do so would result in the court proceeding with the defence application under section 11(d) of the Charter.

Any reasonable person would have understood that judgment to be a ‘line in the sand’.  It was an ultimatum.

13 July 2020 came and went, and the CDS did not rescind his order.  Bourque’s application was then set to proceed.  While the outcome of that matter has not yet been published, I am aware that the proceedings were terminated with a guilty plea on a ‘joint submission’.  Defence Counsel and the prosecutors from DMP presented Commander Sukstorf with a ‘joint submission’ on a sentence of a $200.00 fine.  Recalling that Major Bourque was charged under section 129 of the National Defence Act (NDA) with “… making comments that devalue females and female members of the [CF] …”, and that the CDS has made punishment of such actions a priority, I will leave it to readers of this Blog to draw their own conclusions regarding why DMP may have consented to such a minor punishment.  Readers may also wish to consider what administrative punishments lie in wait for Major Bourque.

But the specific sentencing outcome in Bourque is not the central concern in terms of evaluating the impact of Commander Sukstorf’s judgment on the Code of Service Discipline.

Commander Sukstorf’s judgment was handed down on Friday, 10 July 2020.  Presumably, at some point after the judgment was handed down, and before 1330 hrs on the following Monday, there was at least one meeting of senior legal advisors and prosecutors in the OJAG to discuss the implications of the judgment.  Presumably, someone would have concluded that it was an important issue to raise with the CDS in a timely (read: immediate) manner.  Based upon my experience in the OJAG, I would assume that the JAG, the newly promoted Rear-Admiral Bernatchez, and the Deputy Judge Advocate General – Military Justice (DJAG MJ), Colonel Steve Strickey, would have met (or attempted to meet) with the CDS to discuss the judgment and its implications.[3]  It is also likely that DMP, Colonel Bruce McGregor, would have participated.

Indeed, in issuing her ultimatum, Commander Sukstorf was manifestly clear that she expected counsel for Defence Counsel Services and DMP (particularly the latter) to ensure that her order, and the reasons therefor, were communicated to the CDS and that “… the legal advisers in the OJAG will fulfil their professional responsibility in rendering legal advice consistent with the current law.”

This was not a subtle suggestion by the military judge.  She made it abundantly clear that she expected the senior legal advisors in the OJAG and the CDS to take judicial declarations and the accompanying judgments seriously.  The lingering question is: are these judgments and declarations being treated seriously by senior CF decision-makers?  And, if not, what will it take to ensure that they are?

If the JAG, DJAG MJ, and DMP did not meet with, and advise the CDS, I would be inclined to ask: Why did they not insist on meeting with the CDS to discuss the issue?

And why did the CDS not rescind an order that has been, and will continue to be, declared of no force or effect by military judges?

Does the CDS have such little regard for the rule of law that he will stubbornly maintain an unlawful order?

 

Prior Judgments

The Bourque judgment was ostensibly about whether the accused should be permitted to bring the Charter application, notwithstanding the alleged inadequate notice to DMP prosecutors.  However, the bulk of the judgment concerned the appropriate courses of action for various ‘stakeholders’ in the Code of Service Discipline, in light of the problematic order by the CDS.

In her judgment, Commander Sukstorf stated that Bourque represented the sixth[4] application regarding the CDS’ order that had been brought before a court martial.

Respectfully, I disagree somewhat with Her Honour’s characterization.

Certainly, in both Pett and D’Amico, the accused brought an application under section 11(d) of the Charter seeking a declaration that the court martial was insufficiently independent and/ or impartial in light of the impugned order.  I have commented about these two cases previously, here and here.

In both Pett and D’Amico[5], the presiding military judges held that the CDS order was inconsistent with section 11(d) of the Charter and was, therefore, of no force or effect.  Consequently, the military judges in both matters held that the prosecution could proceed.  While they both clearly objected to the CDS’ order, they were disinclined to stay the prosecution.  Both military judges came to the efficient and expedient – and, I suggest, correct – conclusion that, if the CDS’ order is of no force or effect, then it could not affect the independence and impartiality of the military tribunal.

As I have observed previously, the defence counsel were successful in attacking the CDS order, but were ultimately unsuccessful in barring the prosecution.

I have also observed previously, that part of the problem in both Pett and D’Amico was that the accused challenged the CDS’ order, rather than the broader problem arising from military judges being subject to the Code of Service Discipline.  There was no Notice of Constitutional Question brought in either matter.  In Pett, the military judge, Commander Pelletier, indicated that the Military Judges Inquiry process was an effective substitute for the application of the Code of Service Discipline.  In offering my own commentary on that judgement, I contend that Commander Pelletier’s statements must be construed as obiter dicta, as the constitutionality of the statutory provisions was not properly before the court martial by virtue of a Notice of Constitutional Question.  I also contend that it is problematic to equate the Military Judges Inquiry process to the application of the Code of Service Discipline.

In her judgment in Bourque, Commander Sukstorf stated that two subsequent applications, heard, respectively, on June 26 and June 29, 2020, were similar to Pett and D’Amico, and that judgments in both those matters were still pending.

However, I disagree with the characterization that the matter heard on June 29, 2020 was similar to Pett and D’Amico – or, perhaps more accurately, was as limited in scope as Pett and D’Amico.

An application was heard by the Deputy Chief Military Judge, Lieutenant-Colonel J.V. d’Auteuil, on 29 and 30 June 2020 in R v Crépeau.  However, unlike in Pett and D’Amico, the accused in Crépeau brought a Notice of Constitutional Question regarding the application of the Code of Service Discipline to military judges generally.  While the accused raised the impugned CDS order as a material example of executive interference with the military judiciary, the focus of the application was on whether military judges are sufficiently independent and impartial by virtue of being subject to the Code of Service Discipline (and, therefore, interference by the executive) under the National Defence Act.  This would persist regardless of the CDS order.  Arguably, the failed prosecution of the former Chief Military Judge, Colonel Dutil, was another manifestation of this vulnerability.  (See here, here, and here, for additional commentary from me regarding that particular fiasco.)

The Deputy Chief Military Judge reserved his judgment after hearing the application in Crépeau and it might not be handed down until the end of July.  There is a distinct possibility that the Deputy Chief Military Judge will conclude that the independence and/or impartiality of the military judges are undermined by the broad and unfettered application of the Code of Service Discipline to military judges.  In such a circumstance, I suggest that the polycentric nature of any potential remedy to such infringement would make ‘reading down’, ‘reading in’, or ‘reading out’ legislative provisions problematic.  Correcting the problematic aspects of the Code of Service Discipline would likely have to be left to Parliament.  The added challenge for the Deputy Chief Military Judge is that, as a statutory court, a court martial can only declare statutory provisions of no force or effect for that particular court martial.

Courts martial are not created under section 96 of the Constitution Act, 1867.  They are statutory courts; they exercise powers conferred by statute (principally the NDA).  Notwithstanding that a court martial is vested, under the section 179 of the NDA, with the powers of a ‘superior court of criminal jurisdiction’ with respect to certain functions, this provision does not grant courts martial with the broad and inherent jurisdiction of a ‘section 96 court’.[6]

This limitation for courts martial is reflected in the limits of any declaration made by these statutory courts, which are convened specifically for individual, sui generis, prosecutions.  They are sometimes referred to as ad hoc courts.  I tend to avoid that nomenclature, as it can imply a lack of comprehensive structure, which would be inconsistent with the legislated structure for courts martial, which has been amplified through multiple judgments.  I suggest that it is more precise to refer to them as sui generis statutory courts: they are convened, on a case by case basis, for individual prosecutions.  In her judgment in D’Amico, Commander Sukstorf summarizes (at paras 23 to 25) the limitations imposed on courts martial with respect to declarations of constitutional invalidity, concluding: “The effect of a finding by a military judge that the CDS Order … does not conform to the Constitution permits the judge to refuse to apply it in the case before it, but until the order is formally cancelled or rescinded, it remains in full force and effect.”

Consequently, when rendering a judgment in the application in Crépeau, if the Deputy Chief Military Judge does declare specific statutory provisions, which subject military judges to the jurisdiction of the Code of Service Discipline, to be of no force or effect, it is likely that he will also suspend any declaration of unconstitutionality for a period of time to permit Parliament to react.  Time will tell what will arise in Crépeau (and I will certainly offer my own observations when that judgment is handed down).

However, with respect to Commander Sukstorf’s characterization of the applications that have been brought as a result of the CDS’ Order regarding disciplinary jurisdiction over military judges, I contend that the issues raised in Crépeau extend further than those that were properly before the courts martial in Pett and D’Amico.

And that brings us to a couple of possible reasons why the CDS did not rescind his constitutionally problematic (read: unlawful) order.

First, based upon the judgments in Pett and D’Amico, the CDS may have concluded that the continued existence of the problematic order is not a barrier to the continued functioning of the Code of Service Discipline.  Notwithstanding that military judges have clearly concluded that the order is constitutionally improper, the courts martial in which they made those declarations still proceeded.  They still resulted in Code of Service Discipline convictions.  There is little incentive for the CDS to rescind the order, particularly if he doesn’t care about criticism from military judges regarding his disregard for the rule of law.  The CDS cares about outcomes, and DMP was still able to proceed with the prosecutions.

Second, as the current JAG clearly indicated in her ‘inaugural address’ when she was appointed JAG, (and as I pointed out at the time), her philosophy on advising the senior leadership of the CF appears to be rooted in a preference to avoid ‘rocking the boat’.  In order to remain ‘relevant’ she appears to have directed her subordinates in the OJAG to avoid being a ‘barrier’ when providing legal advice to CF decision-makers.  In effect, unless a proposed decision or action is clearly illegal, legal advisors appear to have been directed to be as ‘permissive’ as possible when they provide legal advice.  This will permit them to ‘empower’ the decision-makers they advise.

The problem with such an approach is that, while it will certainly reduce tension between legal advisors and the decision-makers they advise, it does not necessarily lead to optimal or fair decision-making.  Under such circumstances, legal advisors risk becoming a ‘rubber stamp’, rather than providing meaningful advice – and even guidance – that would lead to public decisions that are not only lawful, but also reflect respect for the rule of law.

While I would agree that it is not the role of an individual legal advisor to impose his or her preferences on a CF decision-maker, a legal advisor should still strive to encourage a decision-maker to make a decision or take action that is not only lawful, but which also demonstrates a respect for the rule of law.  After all, a CF decision-maker is not acting in a personal capacity; he or she is acting in a public capacity, presumably in the public interest.  As the late Chief Justice Lamer recommended in the First Independent Review of Bill C-25:

… constitutionality is a minimum standard. … those responsible for organizing and administrating a military justice system must strive to offer a better system than merely that which cannot be constitutionally denied …[7] [emphasis added]

To phrase the sentiment in terms that the CDS might appreciate: armed forces that train to a minimum standard of effectiveness, will be minimally effective armed forces.  The goal should be to train to the highest feasible standard.  The same principles should be followed regarding the respect accorded to the rule of law.

Consider what Commander Sukstorf stated at paras 34 to 38 of her judgment:

[34] In considering the broader administration of justice concerns, I cannot ignore the fact that this court martial is considering this issue for the sixth time specifically because of a failure somewhere in the military justice system to give effect to the court orders issued in both Pett and D’Amico. This complacency comes at a significant cost to the efficiency of the military justice system that can neither be sustained nor tolerated. This is essentially the underpinning of the request set out at paragraph 35 of the accused’s notice that reads as follows:

The judicial restraint expressed by Sukstorf, M.J. and Pelletier M.J. is palpable. However, it appears to have fallen on deaf ears. The Pett judgement on the same application as the case at bar, was delivered on 10 January 2020. The D’Amico Judgement on the same application as the case at bar was delivered on 21 February 2020. Since these decisions, the CDS does not appear to have heeded the stern and ubiquitous decisions of our military courts martial. At the time of writing, the Applicant is not aware of any changes to the impugned order despite ample time for the CDS to follow the directions of our military courts martial. The appearance of such a flippant disregard to the concerns expressed by two military judges that have heard these application, together with the principle of judicial comity, and the passage of more than (six) months since the decision in Pett, should reasonably demonstrate to this court that the CDS does not appear to have the necessary motivation nor will to address the concern over the erosion of public confidence in the administration of justice in our courts martial.

[35] As I explained to counsel during the proceedings, there is no evidence before the court to suggest that the CDS or his office have refused to recognize the courts’ Orders. Further, there is no evidence that they are even aware of the decisions rendered in Pett and D’Amico. As a result, I feel compelled to extend to the Executive the same accommodation that I am affording to defence counsel in assessing his late submission of notice.

[36] The action required to rescind the Order is not complicated; however when I compare it to the time expended in rehearing this issue repeatedly (after courts martial have already heard the application six times) and considering the amount of resources being expended on the same issue, then I am left with no choice but to conclude that additional judicial direction is necessary. This issue is not going away until the CDS Order is rescinded. From both a cost and efficiency perspective, it is unreasonable to expect courts martial to continually rehear the same indistinguishable issue for every accused. As the accused submits at paragraph 36 of his notice:

It seems rather preposterous to expect every accused person to bring this same plea-in-bar for as long as this impugned order exists. Without an appropriate remedy for this ongoing affront to judicial independence, a reasonable and well-informed member of the public, especially a person subject to the CSD, will have grave concerns over institutional bias. It is this type of ideological creep (manifested, in this matter, by the continued existence of the impugned order), that erodes confidence in the independence and impartiality of military judges. This concept of true independence is something Pelletier M.J. in Pett recognized.

[37] Allowing this status quo to continue with the continual churn of applications does nothing more than degrade and erode confidence in the entire military justice system. Further, it continues to monopolize significant judicial resources, not to mention the resources of the DMP and Director of Defence Counsel Services (DCDS) thereby impairing the timely administration of military justice. As the court in Kazman concluded, a trial judge must also consider how the decision in the case before them affects the entire court calendar in other ways. In fact, this Court must weigh not just how the interests of justice lie in this specific case, but it must also assess whether the impact of a slight delay in this case will help or hinder the overall Court calendar. If this issue is resolved at the earliest opportunity, then it is expected that the recurrence of the same litigious issue will end and both the judiciary and counsel can focus on the priority of the cases before them. There is clearly no utility to permitting the status quo to continue.

[38] As Martineau J. expressed regarding a similar rotational churn of voir dires in the case of Canada (Director of Military Prosecutions) v. Canada (Office of the Chief Military Judge), 2020 FC 330, “Is this the type of “spectacle” that we want to give to the public and to the litigants of the Code of Service Discipline?”

 

That is remarkably strong language from a judge.  I have chosen to reproduce those passages, in their entirety, in order to highlight their significance.

In particular, Commander Sukstorf chose to include two passages from the accused’s factum.  In these passages, counsel for the accused/applicant used what can be characterized as provocative language.  This is significant.  While the sentiment expressed in that factum originated with the accused’s defence counsel, Commander Sukstorf expressly chose to include these statements in her judgment, citing them positively.

It is reasonable to suggest that Commander Sukstorf adopted those sentiments as part of her judgment.

Commander Sukstorf is sending a message to the CDS in no uncertain terms: start demonstrating a respect for the rule of law in the administration of justice in the Canadian Forces; otherwise, you risk undermining the very tool you rely on to maintain discipline.

Regular readers of my Blog may well anticipate my next comment.

I suggest that the reason why the CDS failed to take Commander Sukstorf’s ultimatum seriously is because he has already largely abandoned the Code of Service Discipline as the principal means for maintaining discipline in the CF.  As I have observed repeatedly in this Blog, the chain of command in the CF has, for some time now, relied principally on administrative measures to punish and discipline CF personnel, particularly in terms of the CDS’ ‘flagship’ policy, Op HONOUR.

That is not surprising.  A CF member cannot elect to have an administrative sanction determined by a constitutionally independent tribunal.  The sole recourse for a CF member to challenge improper administrative actions, decisions, or omissions in the administration of the affairs of the Canadian Forces is the CF grievance process.  The CDS is the final authority in that process and, although the initial authority faces a 4-month limitation period on the adjudication of a grievance, the final authority faces no time limit.  And the first opportunity for a CF member to obtain review by a constitutionally independent tribunal, via judicial review before the Federal Court, will often not arise for two years or more, based upon the current rate of resolution of grievances.  Even then, the final authority benefits from a significant margin of appreciation for most matters.  And, even if the Federal Court does quash an unfair or unreasonable decision by the final authority, the damage to a CF member’s career will invariably have been done.

For those of us who served throughout the 1990s, the shift to using administrative measures as alternative punishments to the Code of Service Discipline is a dark harbinger of that era, an era in which the current CDS also served.  That misuse of administrative measures for disciplinary purposes was often cited as one of the principal justifications for the reform of the Code of Service Discipline at the end of the 1990s.  When Presiding Officer Certification Training was developed over two decades ago, this factor was emphasized in lessons that explained the rational for that reform.  I would also suggest that, over the past few years, there has been diminishing attention paid to this problematic factor in that, and similar, training.

And the amendments to the Code of Service Discipline introduced by Bill C-77 last summer will not remedy the problem.  As I have mentioned in this Blog previously (here and here), the two principal effects of the ‘Summary Hearing’ process introduced in Bill C-77 (but not yet in force) is to remove the opportunity for a CF member to elect trial before a constitutionally independent court martial, and a reduction of the Crown’s burden of proof from the criminal standard (beyond a reasonable doubt) to the civil standard (balance of probabilities).

The principal objective of the introduction of the Summary Hearing process is to make it easier for the CDS and the CF chain of command to secure convictions against CF personnel under the Code of Service Discipline.  They can substitute the term ‘offence’ with ‘infraction’ and ‘sentence’ with ‘sanction’, but punishment is punishment, regardless of the name applied.  And, despite the fact that Bill C-77 received Royal Assent over a year ago, we are still waiting to see what regulations will be enacted to bring those statutory provisions into force.  Contrary to past practice in developing legislative reform of the Code of Service Discipline, the implementing regulatory provisions were not drafted in concert with the statutory provisions presented to Parliament.  When representatives of the OJAG appeared before Parliamentary Committees, they did not present completed regulatory drafts demonstrating the full legislative intent.

Therefore, members of the Canadian Forces and the Canadian public remain in the dark about the full nature of that legislative reform.

If the current climate of disdain for the rule of law is any indicator, it does not bode well.

And, on a tangential note, this week will mark four months since the Chief Military Judge retired, and we are still waiting for the appointment of his successor.  This continued vacancy also does little to instil respect for, and confidence in, the military justice system and the application of the rule of law in the Canadian Forces.

 

[1] The timing of both events is relevant to the ‘ultimatum’ described in the judgment.  The judgment was posted on the Chief Military Judge website on 22 July 2020.

[2] Section 96 of The Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3, creates Superior Courts of Justice: “ The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.”  These are courts of plenary – complete or inherent – jurisdiction established under the ‘supreme law of Canada’.  See, for example, Re Residential Tenancies Act, 1979, [1981] 1 SCR 714, 728, per Dickson J.

[3] I should also point out that this summer’s Annual Posting Season (APS) will bring about significant changes in the officers occupying the key leadership positions in the OJAG.  Aside from the Director of Defence Counsel Services (DDCS) and DMP, almost all of the other ‘Deputies’ will be changing positions.  Specifically, Colonel Jill Wry will move to DJAG Military Justice, Colonel Steve Strickey will move to DJAG Strategic, Colonel Marla Dow will move from Chief of Staff JAA (COS JAG) and Colonel Rob Holman will become COS JAG.  Therefore, the composition of any meeting regarding Commander Sukstorf’s judgment may have varied.

[4] Respectfully, Commander Sukstorf mentions Pett and D’Amico, as well as applications in a ‘fourth’ and ‘fifth’ court martial, heard on 26 June 2020 and 29 June 2020, respectively.  It is unclear what additional application Commander Sukstorf included in her tally.  Although she mentioned R v Beemer, 2019 CM 2030, there was no Charter application in that matter and Commander Sukstorf, the presiding military judge in that matter, expressly denied the defence application for an adjournment to examine the impact of the CDS’ order.

[5] Commander Sukstorf was the presiding military judge in D’Amico.

[6] See, for example: R v Lloyd, 2016 SCC 13 at para 15.  See also: R v Généreux, [1992] 1 SCR 259; R v Tomczyk, 2011 CM 1004, para 11; Windsor (City) v Canadian Transit Co., 2016 SCC 54, para 33; R v Barrieault, 2019 CM 2013; R v Kirwin, 2020 CM 5006.

[7] Rt Hon Antonio Lamer, PC, CC, CD, “The First Independent Review of the provisions and operation of Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, as required under section 96 of Statutes of Canada 1998, c.35”, September 3, 2003, page 21.