R v Harrison, 2023 ONCJ 392: Don’t Be Sold a Bill of Goods (Redux)

 

Is the Director of Military Prosecutions (DMP) – and the military prosecutors who perform functions under his supervision – truly an independent decision-maker?  Is the Canadian Forces Provost Marshal (CFPM) – and the military police who perform functions under his supervision – truly an independent actor?  Or does the Minister of National Defence (MND) control their functions?

And, perhaps most topically, where does the blame lie for the recent stay of prosecution of allegations of sexual assault against a member of the Canadian Forces (CF), which was begun under the military justice system, but which was eventually transferred to a civil court of criminal jurisdiction?

On 17 September 2023, I posted the Blog article “Political Interference was the cause of delay, not the military justice system”.  That Blog concerned the judgment in R v Harrison, 2023 ONCJ 392 [Harrison].  As I noted when I posted my Blog commentary on 17 September 2023, Justice Richardson’s judgment in Harrison had been handed down, but his reasons were not yet publicly available on platforms such as CanLII.  As I noted in my Blog post, there was tension between my desire to offer timely and meaningful commentary and my desire to offer commentary supported, directly, by the actual content of the judgment (rather than relying on the limited details that were discussed by the news media).[1]

I am now in a position to offer further commentary based upon the now-published judgment.

Unfortunately, the judgment confirms many of the assumptions and conclusions that I offered on 17 September 2023, including the fact that the matter was subject to a publication ban when the decision was made (i.e., on 18 August 2023), but that the Crown requested, on behalf of the complainant, that the Publication Ban be lifted.  Thus, by the time that the reasons were made public, the accused could be named (and the news media could publish an interview with the complainant).

 

Scope of Discussion

Justice Richardson offered a comprehensive judgment, and, for anyone interested in the issue of delay arising for matters that were first the subject of charges under the military justice system, and which were subsequently transferred to the civilian criminal justice system, I encourage you to read the decision in its entirety.

While I do not propose to examine all issues arising in the judgment, I will amplify my earlier discussion regarding the following problematic characterizations that were offered in prior news coverage:

1. That the delay in this matter can be attributed to the concurrent jurisdiction of the military justice system;
2. That such delay, in similar matters, could have been avoided had section 70 of the National Defence Act (NDA) been amended earlier (and, consequently, that amendment of that provision now would avoid future delay).

 

As I explained on 17 September 2023, if the delay in this matter can be attributed to any aspect of the military justice system, it should be attributed to political interference in the exercise of prosecutorial discretion under the military justice system, and the failure of CF decision-makers to resist such interference, resulting in what can only be described as imprudent decision-making.  The concurrent jurisdiction that the Code of Service Discipline has over the offence of sexual assault (and other variations of this offence) was not the cause of the delay in this matter and did not give rise to the stay of prosecution.  The fault lies in actions and decisions by specific decision-makers, and not all of those decision-makers were military decision-makers.

 

The Minister of National Defence

Before we delve into the specific facts in Harrison, I want to remind you of the decision by the (then) MND, Anita Anand, in November 2021, and the consequences of her decision and direction.  I discussed this decision, and its consequences, in detail, in a Blog post dated 19 November 2021:

The MND’s New Policy and the Rule of Law, 19 November 2021

 

I do not propose to reiterate the entirety of my commentary and analysis from that Blog post.  I do commend it to your attention, and I will summarize key conclusions and comments from that Blog.

On 4 November 2021, the MND announced that “… sexual misconduct cases will be handled by civilians …”.  As I observed the following day, that broad comment raised more questions than it answered:

Minister of National Defence Announcement – Sexual Misconduct, 5 November 2023

 

Clarification eventually followed, specifying that alleged criminal offences of a sexual nature would be investigated and prosecuted by civil authorities.  And even that, somewhat more specific, direction gave rise to caveats.  After all, there were already matters that fell within that description which were already at various stages of investigation or prosecution within the military justice system.  What would become of those?

First, there was a joint statement of Orwellian character by the CFPM and DMP issued on 5 November 2021.  They observed that “… [t]he increasing lack of public confidence in the military justice system is a real and pressing concern …”.  However, they stressed that they were exercising their discretion as independent actors to implement Mme Arbour’s recommendations (even though their purported exercise of discretion followed immediately after the MND clearly issued direction).  Nevertheless, the CFPM and DMP stressed that “… Canadians can and should have confidence in the military justice system …”.  But, if that is the case, why was there a need to follow Mme Arbour’s recommendation (and, presumably, the MND’s direction)?  If they were truly independent actors, why did it appear that they were, in reality, following the MND’s direction.  Certainly, it would be reasonable for the Canadian public to conclude that, notwithstanding their protestations of ‘independence’, the CFPM and DMP were simply following the MND’s direction.

And that would be problematic.

As I explained on 19 November 2021, the MND cannot issue direction to the CFPM and DMP.  The Minister can issue direction to the Chief of the Defence Staff (CDS).  The CDS can then issue direction to the Vice Chief of the Defence Staff (VCDS), who can then issue direction of a general nature to the CFPM.  However, absent compelling reasons to do otherwise, this direction must be reduced to writing and made available to the public.

Similarly, the MND could give general direction to the Judge Advocate General (JAG) who may then issue direction of a general nature to DMP.  As with the direction from the VCDS to the CFPM, the direction from the JAG to DMP must normally be reduced to writing and made available to the public, unless there are compelling reasons in the interests of justice not to do so.

I cannot imagine that there was a compelling reason, in the interests of justice, not to make such direction public.

It appears that these rules, set out by Parliament, were not followed.  Instead, the MND issued her direction publicly via press conference (and, perhaps, by private, undisclosed discussions or other communication).

Directions that were made available to the public were those contained in DMP’s Interim Direction Regarding the Implementation of Madame Arbour Interim Recommendation, dated 26 November 2021.  This will become relevant to our discussion later.

Thus, in November 2021 a decision was made by the MND that criminal offences of a sexual nature would no longer be investigated by military police or prosecuted in the military justice system.  Shortly thereafter, the CFPM and DMP assured everyone via press release that they would follow this direction, albeit as “independent actors” exercising their discretion.  Whatever that meant.

Notwithstanding those assertions in late 2021, as of September 2023, the military police are still investigating allegations of sexual assault made against CF personnel and sexual assault is still being prosecuted by court martial.

 

R v Harrison, 2023 ONCJ 392

I would not presume to improve upon Justice Richardson’s succinct iteration of the relevant facts in Harrison and, again, I strongly recommend that anyone interested in this issue take the time to read that judgment in detail.  Nevertheless, for the purposes of our discussion, I do wish to highlight relevant facts:

• The allegations against Harrison were raised on 29 April 2020.
• The military police investigated. The judgment does not specify that this was the Canadian Forces National Investigation Service (CFNIS), but that is the specific military police organization that would have been responsible for that investigation.
• It appears that a DNA sample was sought and obtained, although the dates relating to any relevant search warrant or other steps to obtain the DNA were not described. However, the eventual DNA report was available as early as 16 October 2020.  Harrison was not charged until 29 March 2021, 11 months after the complaint was made and 5 ½ months after the military police received their DNA report.
• Justice Richardson expressly observed:

“How and why it took the military police eleven months to investigate this matter and commence the prosecution in the military system, would seem to be beyond belief.” [Emphasis in original].

• The charge was “preferred” by DMP on 17 September 2021, 5 ½ months after the charge was laid. No explanation for this amount of delay was offered.  Justice Richardson did not express any consternation over this inordinate delay; perhaps he was still reeling from the shock of the pre-charge delay by the military police.
• The charges were withdrawn from the military justice system on 21 December 2021 and re-laid by information in the civilian criminal justice system two days later on 23 December 2021.

 

The rest of the delay arose within the civil criminal justice system.  While I will not delve into that in detail, I do encourage you to review that portion of Justice Richardson’s reasons.  It is relevant to the issue of delay, generally, even if it is of little or no impact on the scope of discussion that I propose above.

I wish to offer a couple of observations on the process within the military justice system.  First, Justice Richardson expressed incredulity regarding the pre-charge delay.  I can sympathize.  Regular readers of this Blog will be aware that I have commented previously on inordinate delay by the military police in laying charges.  However, I have some disconcerting news for Justice Richardson.  This isn’t remotely one of the worst examples of pre-charge delay by the military police.  At least they may have had the excuse, thin though it may have been, that they were waiting for a DNA analysis report.  That doesn’t explain why it then took them another 5 ½ months to lay a charge after they received that report, but it could account for some delay.  On the other hand, I have encountered charges that accumulated 15 months of pre-charge delay, and which did not involve any DNA or other medical analysis, and for which there were only three or four witnesses for the military police to interview.

The repeated and excessive pre-charge delay by military police regarding matters prosecuted under the Code of Service Discipline can be contrasted in a marked fashion with the military police investigations conducted where the intention is to lay charges within the civilian criminal justice system.  Rather than being inexorably slow, the latter types of investigations have often been imprudently quick.  In some of those matters, CFNIS investigators have purportedly  expressly declined even to offer the subject/accused an opportunity to provide their version of events before laying charges.

As I have explained previously, a reasonable, even compelling, conclusion to draw from this consistent and excessive pre-charge delay in the military justice system is that military police are attempting to front-load delay to minimize any adverse consequences under section 11(b) of the Canadian Charter of Rights and Freedoms (Charter).  I do not propose to delve into that subject in detail here, but I do recommend that you review: Possible Consequences of R v Beaudry, 2018 CMAC 4 – Observation #1, 18 April 2019.

Second, one factor upon which Justice Richardson does not expressly comment was the 5 ½ months that it took to “prefer” the charge.  It is possible that there was insufficient evidence and argument before Justice Richardson to demonstrate that this, too, was a problem.  Certainly, any judge with considerable experience with the criminal justice system would be alarmed at 11 months of pre-charge delay for a matter that was not particularly complex.  However, he may not have been familiar with the process followed within the military justice system.

5 ½ months is a long time – imprudently long – for a military prosecutor to conduct post-charge review of a matter that was not particularly complex.

In the civilian criminal justice system, it is typical for an Assistant Crown Attorney to conduct post-charge screening when charges are laid before a court of competent jurisdiction.  The time for such screening can vary.  In my experience, this tends to be conducted as fast as, or often faster than, what arises in the ‘military justice system’.  But we also have to remember that civilian prosecutors are dealing with a markedly larger volume of matters.

Moreover, in the civilian criminal justice system, save in specific matters (e.g., serious or high-profile matters), typically the first opportunity that the Crown Attorney (or, more accurately, an Assistant Crown Attorney) has to screen the charge is after the charge is laid.  This is not so in the ‘military justice system’.

At the time that the charge against Harrison arose (i.e., prior to the amendment of the Code of Service Discipline in June 2022) most charges for service offences required legal advice prior to the laying of the charge.  In these specific circumstances, pre-charge legal advice would have been mandatory.  And, for the CFNIS, the pre-charge legal advice is given by prosecutors in the Canadian Military Prosecution Service (CMPS) under DMP.

The DMP Policy on Pre-Charge Screening (DMP Policy Directive # 002/00) asserts, at para 6, that “Often when a Prosecutor is called upon to provide pre-charge advice the file may be incomplete as compared to the file at the time of court martial.”  I disagree with the accuracy of this assertion.  On the contrary, I suggest, based upon my own experiences, that the CFNIS almost always seek pre-charge screening only when the investigation is considered (by them) to be complete.  In fact, I contend that this is CFNIS policy and, in an application that I argued before a civilian court of criminal jurisdiction in 2020, the CFNIS investigator who testified confirmed that this is their policy.

The key point that I wish to make here is that DMP has assigned a specific CMPS prosecutor whose principal function is to provide the CFNIS with advice, including pre-charge legal advice.  The CFNIS consistently seek pre-charge legal advice from this prosecutor.  It can sometimes take several weeks, or even months, to obtain that advice.  And all of that delay falls under the front-loaded pre-charge delay that alarmed Justice Richardson.

And remember, this is the “… separate system of military tribunals … [that] allow[s] the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military …” that the late Chief Justice Lamer referred to in R v Généreux, [1992] 1 SCR 259.  The justification for this separate system, which resonated nearly 30 years later in R v Stillman, 2019 SCC 40, was justified based upon the observation that to “… maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently.” (Généreux, p 293, emphasis added)

After the charges are laid, the charges were forwarded to the accused’s commanding officer, who then applies for referral by a ‘Referral Authority’ (an officer who has the powers of an Officer Commanding a Command – typically a General or Flag Officer).  The Referral Authority then refers the charges to DMP for ‘preferral’.  This ‘preferral’ will cause the Court Martial Administrator to convene a court martial.

Notwithstanding that this can be a laborious process, it should not take nearly six months, particularly when there are legal officers to assist the commanding officer and Referral Authority with their functions, and when the military police investigation was already scrutinized by a military prosecutor at CMPS before the charges were laid.

 

Delay under the Military Justice System

Thus, by the time that the charges were preferred for court martial, they had already incurred 5 ½ months of delay.  Another 3 months delay would be accrued by the time the decision was made, in effect, to transfer the charge to the civilian criminal justice system.  This decision was presumably made by a military prosecutor, in consultation with the CFNIS and, possibly, in consultation with the civilian Crown’s office that would have to prosecute the charge.

When that decision was made, on or before 21 December 2021, the relevant decision-maker must have been aware that the charges had already accrued nearly 9 months of delay (on top of 11 months of pre-charge delay without any reasonable explanation for such lengthy delay).

And that decision-maker would (or should) have been acutely aware that this represented half the presumptive delay permitted under R v Jordan, 2016 SCC 27.

Justice Richardson provides comprehensive analysis of the delay arising under the military justice system beginning at para 123 of his judgment.  He discussed the observations and recommendations offered by former Supreme Court of Canada Justices Lousie Arbour and Morris Fish.  He referred to the study by Professor Elaine Craig of the Dalhousie University Schulich School of Law (which, in turn, was also relied upon by former Justice Arbour).

He then discussed the response by the (then) MND, Anita Anand.  And, at para 151 of his judgment, Justice Richardson referred expressly to a nuance (his term) in relation to Mme Arbour’s ‘interim’ recommendations (dated 20 October 2021) and her subsequent recommendation in her final report to the MND (dated 20 May 2022).  He quoted Mme Arbour from her final report:

In my Interim Report, I recommended that all new cases be transferred to civilian authorities for investigation and prosecution. If this interim measure is to stay in place pending legislation to provide exclusive jurisdiction to civilian courts, all new cases should go to the civilian system regardless of any preference expressed by the victim. When charges have already been laid in military courts, they should continue to proceed in that forum. But no new charges should be brought there. [footnote excluded, emphasis in judgment]

 

Justice Richardson then observed:

[152]   I pause to note that this nuance – which would have directly impacted Mr. Harrison’s case and ensured that it remained in the military system – did not appear in Justice Arbour’s interim recommendation to the Minister six months previously.  That recommendation, which the Minister duly and expediently acted upon, was clear that all cases were to be transferred to civilian courts.  Full stop.  There were no exceptions.

 

And this is where the matter gets interesting from an evidentiary perspective.  First, the civilian Crown argued that the transfer of Harrison’s charge to the civilian justice system was predicated upon the Minister’s direction from early November 2021:

[153]   The Crown argued at paragraph 14 of its Factum Addendum, that in reliance on the November 3, 2021 directive from Minister Anand, the military justice proceeding was withdrawn and the Information was laid in the Ontario Court of Justice on December 23, 2021.

[154]   If that is what happened, I agree with the Crown.  Once the Information was laid, and the military proceedings withdrawn, Mr. Harrison’s case, with the albatross of nine months of delay under the military justice system clasped stubbornly around its neck, was irretrievably locked up in the civilian system.  There was no turning back, even though five months later, Justice Arbour ultimately made it clear that cases already commenced in the military system should remain there.

[155]   By then it was too late for Mr. Harrison’s case.  The actions in December could not be reversed.

[156]   In my view, given the fresh findings of the Arbour Report that the military justice system no longer had the confidence of the public and was essentially unfit for cases involving sexual assault, the decision to bring the case to the Ontario Court of Justice constituted an exceptional circumstance within the Jordan framework.  The nine months of delay in the military system is not something that the Crown could reasonably remedy.  The Crown’s decision to withdraw in the military system and proceed in the Ontario Court of Justice in these circumstances is not frivolous, undertaken in bad faith or executed in a dilatory manner (the test in Tsegas, discussed infra at paragraphs 127 to 129).

[157]   But is there proof that is what happened?

 

Mr. Harrison’s military defence counsel, Captain Da Cruz, testified regarding what he understood was transpiring in the military justice system from November 2021 onward, regarding charges relating to offences of a sexual nature.

The Crown offered no evidence in response to Captain Da Cruz’s testimony.

But Justice Richardson did turn his attention to DMP’s Interim Directive Regarding the Implementation of Madame Arbour’s Interim Recommendation.  And a reasonable person reviewing Justice Richardson’s judgment, particularly paras 167 to 171, would likely conclude that Justice Richardson was markedly unimpressed with the fact that this Directive was likely not followed in this specific matter and that he was left with an evidentiary vacuum in respect of that issue.

 

Failure to Mitigate Against Delay

Justice Richardson observed that there as a failure to mitigate against delay in both the military justice system and the civilian criminal justice system.  Regarding the delay in the military justice system, Justice Richardson summarizes his conclusions at paras 201 to 203 of his judgment:

[201]   In conclusion, with respect to the issue of whether what was happening in the military justice system in the fall of 2021 and early 2022 constitutes an exceptional circumstance; I find that:

(a)         The Crown has not proven a clear link between Justice Arbour’s interim recommendation and the decision to discontinue the military proceeding and commence in the Ontario Court of Justice.

(b)         Even if there was a link, it is clear that the Canadian Forces policy, which warned military prosecutors to consider the accused’s rights to trial within a reasonable time was not followed.

(c)         Even if there was a link, the body of caselaw in analogous situations made it abundantly clear that time in the military system continued to apply to the section 11(b) calculus in the civilian court.

(d)         Even if there was a link, there was a complete failure to exercise reasonable diligence to mitigate the impact of the decision.

[202]   This failure to take reasonable steps to mitigate the delay attributable to the case being withdrawn in the military system and proceeding in the Ontario Court is fatal to the attribution of what I might (assuming that there was evidence of a clear link between Justice Arbour’s interim recommendation and the transfer of the charges to the Ontario Court) have otherwise been prepared to find was an exceptional circumstance.

[203]   There is, therefore, no deduction for this and the period of delay in this case continues to sit at 21.9 months which is presumptively unreasonable.

 

Justice Richardson was obliged to make determinations based upon the evidence before him.  And, as he observed, more than once, in his judgment, he faced evidentiary shortcomings regarding the factors contributing to delay.

As an outside observer, I am not privy to all the evidence that was placed before Justice Richardson, although, thanks to his comprehensive judgment, I believe we all have a fairly good idea of the relevant evidence that was, and was not, before him.

I am also not constrained by rules of evidence when offering observations about the implications of this case in the context of military law.  I can draw on factors that were not necessarily placed in evidence before Justice Richardson.  And I can draw upon my experience with the military justice system (and the administration of the affairs of the CF generally).

I believe that it is rather obvious that the decision to transfer the charge against Harrison to the civilian criminal justice system was driven by Mme Arbour’s recommendation and, more specifically, the direction by the Minister.  And I suggest that Justice Richardson was alive to the fact that, despite the evidentiary lacuna that he faced, a reasonable person would likely draw that conclusion as well.  Hence, Justice Richardson included the caveat: “… Even if there was a link, it is clear that the Canadian Forces policy, which warned military prosecutors to consider the accused’s rights to trial within a reasonable time was not followed.”

But, if we are to believe the assertion by the CFPM and DMP that they are truly independent actors and made their decisions independent of the direction from the MND, then the first, and perhaps principal, cause of the unacceptable delay in this prosecution – delay that led to a stay of prosecution – was the decision to withdraw the charge in the military justice system and re-lay it in the civilian criminal justice system.

The fault does not lie with the fact that the military justice system has concurrent jurisdiction over the offence that was charged.  Amendment of the NDA would not have altered the actual problem.  The problem was the imprudent decision by the unnamed military prosecutor who withdrew the charge under the military justice system.  As Justice Richardson observed at para 143 of his judgment:

[143]   As I set out above, had Mr. Harrison’s case remained in the Military Justice System, the Courts Martial would have proceeded in February 2022 and the decision would be made by now.  Within the microcosm of the case before me, it can hardly be said that the civilian system is faster.

 

That very pointed observation was omitted from the initial reporting of this judgment in the CBC coverage.

But I suggest that the fault does not lie solely with the individual prosecutor.  In light of the timing of the decision, approximately 6 weeks after the MND issued her direction and a month after DMP issued his Directive, it is difficult to believe that the specific prosecutor responsible for this file did not consult with his or her supervisors within the CMPS.

Moreover, a factor that was drilled into me even as a young officer was that I was responsible and accountable for my decisions and my leadership.  I could delegate responsibility, but not accountability.  If one of my subordinates failed to follow my orders, he or she was certainly responsible for his or her actions or decisions.  However, I was also accountable for circumstances when my subordinates failed to follow my direction.

Even if the complainant wished to have these allegations prosecuted within the civilian criminal justice system, she is not the principal decision-maker for such prosecution.  Her concerns and interests were certainly relevant, and a conscientious prosecutor would consult with her.  However, whether we are examining the military justice system or the civilian criminal justice system, we are not examining private prosecutions.  Statutory actors are the ultimate decision-makers.

It does not require 20/20 hindsight to observe that, if half of the delay permitted under the Jordan framework had already been consumed by post-charge delay within the military justice system (almost two-thirds of which arose between the date when the charges were laid and when they were preferred for court martial), then it is markedly imprudent to transfer the charges to the civilian criminal justice system in light of past experiences and the prevailing case law that clearly demonstrated that post-charge delay in the military justice system would be included in the calculation of post-charge delay in the civilian criminal justice system.  This was not their first rodeo where that issue was concerned.

An independent prosecutor would have informed the complainant that, notwithstanding her concerns about the fitness of the military justice system, to transfer the matter to the civil criminal justice system ran considerable risk that the prosecution would be stayed due to delay.  A responsible independent prosecutor would have been acutely aware of the albatross around both Harrison’s neck and the prosecution itself.

We have to remember that the current environment in which charges are being transferred from the military justice system to the civil criminal justice system is markedly distinct from what arose following the Court Martial Appeal Court (CMAC) judgments in R v Trépanier, 2008 CMAC 3 and Beaudry v R, 2018 CMAC 4.  In both of those matters, the CMAC judgments left military prosecutors with little or no option but to transfer matters to the civil criminal justice system (yet they still dithered with several charges following the judgment in Beaudry).

In Trépanier, the CMAC held that the NDA (and QR&O) infringed an accused’s right under section 11(d) of the Charter to trial before an independent tribunal by conferring upon DMP, and not the accused, the capacity to elect whether trial would be before a Standing Court Martial (i.e., a military judge alone) or a General Court Martial (i.e., a military judge and a Panel – which is roughly equivalent to a civilian jury).[2]  The CMAC also refused to grant the Minister’s request (conveyed through DMP) to suspend the execution of the decision for one year to permit Parliament to amend the NDA accordingly.

Consequently, the military justice system was left with an unworkable process regarding the election of the type of court martial.  The provision that empowered DMP to do so was declared of no force or effect.  However, the CMAC did not “read in” capacity for the accused to make the election.  Although the Office of the JAG, the CF, the Governor in Council, and Parliament scrambled to enact Bill C-60, it still interrupted the military justice system.

Similarly, Beaudry, a decade later, interrupted the functioning of the military justice system when the CMAC held, in a split judgment, that the prosecution before courts martial of civilian (i.e., Criminal Code) offences, in which the maximum punishment permitted was 5 years or more imprisonment, infringed an accused’s right under s 11(f) of the Charter to a jury trial.

In both Trépanier and Beaudry, select observers incorrectly suggested that the CMAC judgments sounded a death knell for the military justice system.  That was not the case.  The Charter infringement in Trépanier was corrected by a hastily enacted amendment to the NDA and the CMAC judgment in Beaudry was reversed by the Supreme Court of Canada in R v Stillman, 2019 SCC 40.

However, in both of those circumstances, the judgment of the CMAC, interpreting the supreme law of Canada, set conditions that obliged DMP and the CMPS to take steps to transfer select prosecutions to the civil criminal justice system.  Sometimes that was done quickly.  Sometimes that was done slowly.  And, following the judgment in Beaudry, sometimes it was not done, and DMP relied upon disingenuous justification to continue the prosecution in the military justice system (e.g., R v Spriggs, 2019 CM 4002).

In the present circumstances, the transfer of charges to the civilian criminal justice system represents a choice – an exercise of discretion.  If DMP is the independent actor that he claimed to be in his Joint Statement with the CFPM, then he was under no obligation to transfer any matters to the civilian criminal justice system.  Harrison’s charge could have remained in the military justice system, notwithstanding the non-binding recommendations from former Justice Louise Arbour or the direction from the MND, issued in a manner inconsistent with the framework that Parliament established for the Code of Service Discipline.

If DMP perceived that the direction from the MND was binding, even in the nuanced manner described by Justice Richardson, then that points to at least two problematic concerns.  First, as I have described previously, and summarized above, Parliament has not empowered the MND to give direction directly to DMP regarding such policy decisions.  And the manner in which such direction shall be given to DMP was not respected.  Second, and perhaps more disconcertingly, this would appear to constitute political interference in the exercise of prosecutorial discretion.

If DMP was not bound by that direction, and was able to exercise independent prosecutorial discretion, then a reasonable person would likely be inclined to query why anyone thought that it was a prudent course of action to transfer to the civilian criminal justice system a prosecution that had already incurred nine months of delay under the military justice system.

The stay of prosecutions did not arise because of the concurrent jurisdiction of the Code of Service Discipline over criminal offences of a sexual nature.  It arose because of political interference in the exercise of prosecutorial discretion and imprudent decision-making.

 

[1] On Thursday 20 September 2023, I noticed that the judgment in Harrison had been published on CanLII.  It may have been published a day or two earlier; however, that was when I first noted it in CanLII.  And, regrettably, Dear Reader, sometimes I have other obligations of a higher priority that will prevent me from reacting to such developments as quickly as I might wish.  [With that, I earnestly hope that your disappointment was not immeasurable and that your day was not ruined.]

[2] At that time, there were also Disciplinary Courts Martial, which had a Panel of 3 persons, compared to the Panel of 5 for a General Court Martial.  That distinction is not materially relevant to our discussion.  Disciplinary Courts Martial were eliminated from the Code of Service Discipline in Bill C-60, the same legislation enacted in response to Trépanier to grant the accused the right to elect the type of court martial.