R v MacPherson, 2021 CM 2014 – What were they thinking?

 

On 8 September 2021, a court martial judgment was published that addressed the retrospective application of the jurisdiction of the Code of Service Discipline arising from amendments enacted in Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts.[1]  Specifically, the judgment addressed the jurisdiction of the Code of Service Discipline to try allegations of sexual assault, under section 271 of the Criminal Code, by virtue of an amendment of s 70 of the National Defence Act (NDA), which came into force on 1 September 1999.

This judgment may have gone unnoticed due to the focus on the current federal election.  However, it is noteworthy for a number of reasons.

You may recall, Dear Reader, that I discussed the impact of sections 69 and 70, as they existed prior to the amendments in Bill C-25, in a previous Blog post from May of this year: “Why is the ‘Fortin File’ Being Transferred to a Civil Prosecutor?”

On 8 September 2021, Military Judge Commander S. Sukstorf, terminated the prosecution of Master Warrant Officer (MWO) J.J. MacPherson: R v MacPherson, 2021 CM 2014.

For those of you who follow this Blog (all three of you), this name will likely sound familiar.  This same proceeding was the subject of a previous, unsuccessful, application for a stay of prosecution: R v MacPherson and Chauhan and J.L., 2020 CM 2012.  That decision – also from Commander Sukstorf – stood in marked contrast with stays of prosecution that were eventually ordered in six other matters (R v Edwards, 2020 CM 3006; R c Crépeau, 2020 CM 3007; R c Fontaine, 2020 CM 3008; R v Iredale, 2020 CM 4011; R v Cloutier, 2020 CM 4013; and, R v Proulx, 2020 CM 4012).  All of those applications focussed on the independence of military judges, particularly in light of specific orders issued by the Chief of the Defence Staff (CDS) regarding the exercise of disciplinary jurisdiction over military judges.  Those stays of prosecution were overturned by the Court Martial Appeal Court of Canada (CMAC) in R v Edwards; R v Crépeau; R v Fontaine; R v Iredale, 2021 CMAC 2 and R v Proulx; R v Cloutier, 2021 CMAC 3.

The recent judgment at court martial is notable for a variety of reasons.  In addition to the central issue of the jurisdiction of the Code of Service Discipline and whether the amended section 70 of the NDA can be applied retrospectively, the examination of this issue was precipitated not by an application from the accused, but on the court’s own motion.  Finally, it is not entirely clear why the Director of Military Prosecutions (DMP) pursued a prosecution in which jurisdiction was in doubt.  However, DMP’s decision to pursue this prosecution under the Code of Service Discipline could result in a stay of prosecution for delay even if the matter were eventually referred to the civil criminal justice system, which does have unquestionable jurisdiction.

 

Background

The judgment in MacPherson commences with a brief explanation of the factual circumstances leading to the court martial:

On 10 December 2019, the Director of Military Prosecutions (DMP) preferred two counts of an offence contrary to section 130 of the National Defence Act (NDA); that is, sexual assault, contrary to section 271 of the Criminal Code against the accused. The alleged offences occurred between August and October 1998.

The judgment does not state when the charges were laid or by whom.  There is a distinction between the laying of charges – by a commanding officer (CO), a person authorized by a CO, or an officer or non-commissioned member (NCM) of the Canadian Forces National Investigation Service (CFNIS) – and the preferral of charges by DMP.  The date that a charge was laid would be relevant to any application regarding unreasonable delay contrary to section 11(b) of the Canadian Charter of Rights and Freedoms (Charter).  Often, it can take several weeks or months after a charge is laid for the charge to be preferred by DMP (or an officer performing duties and functions under the direction of DMP).

Although the judgment does not provide the date that the charges were laid, various news media, including the CBC, reported that MWO MacPherson was charged with sexual assault on 12 September 2019.[2]  This news report provided additional information that was not mentioned in Commander Sukstorf’s judgment.  Consequently, I offer the caveat that I am relying on news media reports, and not findings by, or observations from, the court.  In his report for the CBC, reporter Lee Berthiaume, of the Canadian Press, stated:

An investigation was launched after the alleged victim … filed a complaint in April 2016, according to military police, but it was suspended due to lack of evidence.

Military investigators reopened the file two years later, however, at the request of the alleged victim. New information was subsequently uncovered and charges laid against MacPherson, a regular-force member with the Canadian Army Doctrine and Training Centre in Kingston, Ont.

“The Canadian Forces National Investigation Service seeks to investigate and where appropriate lay charges based on factual evidence regardless of when the offence is alleged to have been committed,” said Lt.-Col. Kevin Cadman, commander of the military’s investigative unit.

“Much care is taken to investigate all matters of this nature, historical or otherwise.”

 

Therefore, it appears that an investigation was commenced in April 2016 and suspended sometime after that (we do not know precisely when).  It was then resumed, apparently some time in 2018, and charges were eventually laid in September 2019.  It appears that several months – and possibly more than a year – passed between the recommencement of the investigation and the date that charges were laid.  This marked delay is consistent with my past observations regarding significant delay in the conduct of Military Police investigations.

Readers may recall that the investigation was restarted some time after the Globe and Mail ran its “Unfounded” series in which it criticized law enforcement agencies, Crown prosecutors, and even the courts, for purportedly not taking allegations of sexual misconduct sufficiently seriously.  It is noteworthy that criticism of handling sexual assault was not limited to the Canadian Forces.  Following the publication of the “Unfounded” series, law enforcement agencies from across Canada purportedly reviewed over 37,000 cases of alleged sexual assault in order to reassess whether further investigation was necessary and/or if charges should be laid.

As indicated, supra, a consolidated application for a stay of prosecution was brought by MacPherson, and two other persons facing separate courts martial, before Commander Sukstorf.  On 23 October 2020, Commander Sukstorf dismissed that plea in bar of trial.  Each of the matters then proceeded separately.  One of the proceedings did not continue much further, although there has been no overt comment on why that prosecution ceased.  One of the accused, ‘J.L.’, brought a subsequent plea in bar of trial arising from the fact that he was a ‘Young Person’, as defined under the Youth Criminal Justice Act, at the time of the alleged offences for which he was charged.  That application, before Commander Sukstorf, was also unsuccessful: R v J.L., 2021 CM 2004.

The prosecution of MWO MacPherson under the Code of Service Discipline was terminated on or about 21 July 2021.  However, the judgment was only published 8 September 2021.  On 19 August 2021, the Director of Military Prosecutions filed a Notice of Appeal of the legality of Commander Sukstorf’s decision.  The docket was registered with the CMAC as CMAC-619.  Defence Counsel Services file a Notice of Appearance a week later.

That said, here are some factors that remain uncertain:

• We do not know how long the initial investigation, commenced in 2016, continued before it was concluded or suspended;
• We do not know whether that initial investigation was referred to either DMP or a civilian prosecutor for pre-charge advice;
• If it had been referred to a civilian prosecutor, we do not know what conclusions, if any, that civilian prosecutor drew;
• If it had been referred to DMP, we do not know what conclusions, if any, the military prosecutor drew;
• We do not know the specific nature of the “new information” that was purportedly uncovered, when it was ‘uncovered’, how relevant it was to the matter and the extent of impact it may have had to any prior conclusions or determinations;
• Nor do we know why the ‘re-opened’ investigation may have taken a year or more to complete (in light of the prior investigation that had been conducted).

 

As I review these unanswered questions, I am mindful of what transpired in the prosecution of Captain Stacey:  R v Stacey, 2019 CM 3017.  I have previously commented on that matter.  It concerned an allegation of harassment prosecuted under section 129 of the NDA as ‘conduct prejudicial to good order and to discipline’.  The charge was laid in April 2018 and referred to DMP a month later.  2 ½ months after the referral, and presumably after completing ‘post-charge review’ in accordance with DMP Policy Directive 003/00, a military prosecutor decided not to prefer charges.  Presumably, this was because the prosecutor did not believe that there was a ‘reasonable prospect of conviction’, a relatively low threshold.

Two weeks after the ‘non-preferral’ decision was made, it was communicated to the complainant.  A week later, the complainant complained to the Judge Advocate General (JAG) regarding the decision not to prefer charges.  The complainant’s twin brother also complained to the Chief of the Defence Staff (CDS).  A week later, DMP published the Canadian Military Prosecution Service (CMPS) Complaints Policy (DMP Policy Directive 018/18).  Readers are free to draw what conclusions they may from that sequence of events.

Four weeks after the complainant in R v Stacey complained to the JAG, a more senior military prosecutor conducted a ‘new’ post-charge review, leading to a preferral of a charge almost three months after the prior prosecutorial decision not to prefer any charges.  It is my understanding that no new evidence was obtained in the interval.  There were multiple requests for disclosure by the accused, which (presumably due to refusal by DMP and military prosecutors to disclose certain information) eventually led to an application before the court martial for further disclosure: R v Stacey, 2019 CM 3018.  Much of this disclosure related to the change of decision regarding the referral.  The prosecution was eventually stayed by the presiding military judge due to delay contrary to section 11(b) of the Charter.  Defence counsel had also raised the possibility of an application relating to abuse of process.

 

Court’s Own Motion

One interesting aspect of this judgment is that it arose from the court’s own motion.  Commander Sukstorf states, at paras 4 and 5 of her judgment:

[4]   Contemplating a jurisdictional challenge before this court martial, on my own motion, I raised the concern and invited submissions from counsel on the impact of Bill C-25’s amendments to sections 69 and 70 of the NDA on this Court’s ability to try a case today that allegedly occurred prior to a service tribunal having jurisdiction.

[5]   After multiple submissions, the prosecution was able to resolve most of the concerns identified by the Court. The only remaining issue before the Court is the temporal application of the statutory amendment to section 70 flowing from Bill C-25.

 

Counsel for MWO MacPherson could have brought such a plea in bar of trial and may well have contemplated such an application.  However, it remains noteworthy that the presiding military judge actively sought submissions and argument on this issue.  Of course, such initiative lies within the military judge’s discretion.

 

Judgment

Commander Sukstorf provides a comprehensive judgment, reflecting what were undoubtedly comprehensive submissions by both DMP and the accused.  While I encourage you, Dear Reader, to review the judgment in detail, the crux of the matter turned on whether the change in the jurisdiction of the Code of Service Discipline, found at section 70 of the National Defence Act (NDA), could be applied retrospectively.

Prior to the enactment of Bill C-25 in 1998, section 70 of the NDA limited the jurisdiction of the Code of Service Discipline as follows:

1. 70. A service tribunal shall not try any person charged with any of the following offences committed in Canada:

(a) murder;

(b) manslaughter;

(c) sexual assault;

(d) sexual assault committed with a weapon or with threats to a third party or causing bodily harm;

(e) aggravated sexual assault; or

(f) an offence under sections 280 to 283 of the Criminal Code.

 

The amendment of section 70, introduced by Bill C-25, came into force on 1 September 1999, and that section now states:

1. 70. A service tribunal shall not try any person charged with any of the following offences committed in Canada:

(a) murder;

(b) manslaughter; or

(c) an offence under any of sections 280 to 283 of the Criminal Code.

(d) to (f) [Repealed, 1998, c. 35, s. 22]

 

The amendment removed the prohibition on the exercise of jurisdiction under the Code of Service Discipline for the Criminal Code offences of sexual assault, sexual assault with a weapon or causing bodily harm, and aggravated sexual assault, where they are alleged to have arisen in Canada.  In so doing, it brought within the jurisdiction of the Code of Service Discipline offences, when committed in Canada, that did not previously fall within the Code of Service Discipline.

By way of example, if an investigation of a CF member for sexual assault allegedly committed in Canada had been conducted and completed prior to the amendment of section 70 of the NDA by Bill C-25, and a decision had been made to lay a charge relying on section 271 of the Criminal Code, the charge invariably would have been laid before a civil court of criminal jurisdiction based upon the prohibition under section 70 of the NDA at that time.

However, the allegations against MWO MacPherson comprise what is sometimes referred to as an ‘historical sexual assault’ – meaning that the allegations were raised several years after the alleged misconduct.  In this particular matter, it appears that the allegations were first raised in April 2016, then raised again two years later, leading to two charges being laid in September 2019.  However, the alleged misconduct purportedly occurred between August and October 1998.

Therefore, the issue is whether the changes to jurisdiction under section 70 of the NDA, which came into force on 1 September 1999, could be applied to a sexual assault alleged to have occurred before this date, but which was investigated and prosecuted after the amendment to s 70 granted jurisdiction to the Code of Service Discipline.

If Parliament expressly states that a statutory amendment should be given retroactive effect, then the courts are obliged to do so.  However, in the present matter, there was no such express and unambiguous direction from Parliament.  Therefore, this matter turned on whether the amendment was procedural or substantive in nature.  If it was merely procedural, the presumption is that it would be applied retrospectively.  If it is substantive, then there is a presumption against retrospectivity.

And the determination of whether the amendment was procedural or substantive requires more than simply applying a ‘label’ to the amendment.  [And, as readers of this Blog will likely appreciate – the CF loves to use ‘labels’ to justify exercises of broad and significant statutory powers, even if those labels do not do much to offer objective, reasonable, or transparent justification for the exercise of statutory powers.]

As Commander Sukstorf repeats throughout her judgment, relying on R v Dineley, 2012 SCC 58 and R v Chouhan, 2021 SCC 26, it is the effect of the statutory amendment that will tend to indicate whether it is procedural or substantive.  And Commander Sukstorf held that the effect of the amendment of section 70 of the NDA, which came into force on 1 September 1999, was to grant jurisdiction to the Code of Service Discipline where, before, that jurisdiction was exclusive to the civil courts of criminal jurisdiction.

As Commander Sukstorf concluded in terminating the court martial proceeding:

[99]   On 1 September, 1999, for the first time, Bill C-25 granted the military justice system jurisdiction over the offence of sexual assault that occurs within Canada. Upon a close review of the transitory provisions and a review of the Hansard, there is no evidence to suggest that Parliament intended the amendment to section 70 of the NDA to apply retrospectively.  Absent clear legislative intent, courts martial do not have discretion to rewrite the law to impose or try a member for a service offence that did not exist at the time it allegedly occurred. There are strong policy reasons why statutes should not be given retrospective operation in the absence of an expressed intention by Parliament to do so.

[100]   Further, I find that the legislative changes made to section 70 of the NDA, enacted with Bill C-25, cannot be considered procedural. In fact, there is nothing procedural about the changes to section 70 of the NDA as it had the effect of removing the statutory bar on the jurisdiction of a court martial to try an offence of sexual assault that occurs within Canada, and in doing so, it created a new offence and source of litigation which as distinguished by the SCC in Chouhan is a substantive change. As such, the change to section 70 is a substantive matter going directly to the heart of the jurisdiction of this Court.

 

I cannot help but consider that the outcome of this issue was a foregone conclusion.  Commentators on ‘military justice’, including your humble servant, have consistently suggested that the Code of Service Discipline did not have jurisdiction, even retrospectively, over allegations of sexual assault that pre-date the coming into force of the amendment to section 70 of the NDA.

I recognize that DMP may have legal analysis, either generated within the Office of the JAG or from the Department of Justice, that posits otherwise.  Sometimes such institutional legal analysis is treated in a manner consistent with the judgment of a court.  [While that is not, strictly speaking, accurate, that does not prevent such institutional advice from being treated as Gospel.]  So it may be that, institutionally, DMP and other advisors and decision-makers in the Office of the JAG were of the view that jurisdiction could be applied retrospectively.

However, the perception that jurisdiction over sexual assault could not be applied to alleged misconduct that pre-dated the coming into force of the amendments to section 70 of the NDA appears to be reflected in the actions of the officers who served as DMP since the creation of that office.  Commander Sukstorf noted at para 74 of her judgment:

When the prosecution was asked to provide examples of courts martial for incidents of sexual assault within Canada that predated the coming into force of Bill C-25, they were unable to provide any precedent. It appears that in the 22 years since the changes in Bill C-25 came into force, no charges have ever been preferred for sexual assault occurring within Canada prior to 1 September, 1999.

More recently, a high profile matter involving allegations of ‘sexual misconduct’ against Major-General Dany Fortin was referred to the civil prosecutor in Quebec, presumably for want of jurisdiction under the Code of Service Discipline:  “Why is the ‘Fortin File’ Being Transferred to a Civil Prosecutor?”

And last month Major-General Fortin was charged with sexual assault by civil authorities in Quebec.[3]  That allegation has not been proven before a court of competent jurisdiction.

We must remember that, before the CFNIS referred the ‘Fortin file’ to the civil prosecutor, they would have been obliged to seek advice from DMP.  And there have also recently been a select few matters – involving allegations of sexual assault – in which DMP or the CFNIS has referred charges to civil prosecutors, despite having clear jurisdiction under the Code of Service Discipline.  And this difference in approaches by DMP and the CFNIS is both odd and warrants further scrutiny.

What is not mentioned in the MacPherson judgment is whether, prior to laying and preferring charges under the Code of Service Discipline, the investigation was referred to an appropriate civil prosecutor in order to lay a charge or charges before a relevant civil court of criminal jurisdiction.  Such action would have been consistent with how DMP and the CFNIS have tended to handle such matters in the past.

 

Why would DMP pursue a prosecution in the absence of jurisdiction?

Conceivably, DMP may have been of the view that this particular issue represented an uncertainty in the law relating to the jurisdiction of the Code of Service Discipline.  After all, in the past two decades, there has not been a court martial judgment that has dealt with this specific issue.  Perhaps DMP felt that it merited examination and testing before a court martial.

However, in my experience, government counsel – whether in the application of criminal law (or the Code of Service Discipline) or public and administrative law, are generally not terribly keen on ‘testing’ the parameters of law unless there is a distinct advantage to such an opportunity and the consequences of an adverse judgment are not overly deleterious.

In the present circumstances, the advantage – if the judgment had favoured the DMP position – would have been to permit DMP to pursue prosecution of ‘historical sexual assault’ allegations that pre-date 1 September 1999.  That might appear to be a benefit arising from greater certainty.  However, DMP has not attempted this in the past 22 years.  Why was there, now, such a desire to assert jurisdiction that could have been exercised by civil authorities, and where, objectively, it was unlikely to succeed?

After all, there have been select examples, recently, of matters that clearly fell within the jurisdiction of the Code of Service Discipline, but in which the CFNIS (presumably after receiving pre-charge advice from DMP) have laid charges before civil courts of criminal jurisdiction.  And, on the face of those matters, there have not appeared to be logical explanations for such a decision.  Certainly, none were offered by the charge layers.

I very much doubt that these infrequent decisions signal an indication that DMP and the CFNIS plan to comply with Recommendation #68 of the Third Independent Review of the NDA, conducted by Justice Morris Fish.[4]  The CFNIS continue to investigate allegations of sexual assault and related offences, and to lay charges under the Code of Service Discipline.  DMP continues to prefer charges of sexual assault and related offences for court martial.  A quick perusal of the ‘Upcoming court martial proceedings’ on the Office of the Chief Military Judge’s website illustrates that courts martial relating to sexual assault dominate the calendar.  More than 50% of the scheduled courts martial include charges of sexual assault.

From this, we can conclude that DMP will adamantly defend his broad jurisdiction to prosecute criminal offences, arising within Canada, under the Code of Service Discipline.  It is a jurisdiction that DMP has fought to maintain in R v Moriarity, 2015 SCC 55, R v Cawthorne, 2016 SCC 32, and R v Stillman, 2019 SCC 40.  MacPherson represents a new attempt to stretch that jurisdiction to the retrospective application of the amended section 70 of the NDA.

Consequently, it is surprising that DMP – or the CFNIS acting, presumably, on advice from DMP – would still, on select occasions, elect to lay Criminal Code charges before a civil court of criminal jurisdiction, even where (unlike in MacPherson) there is clearly jurisdiction under the Code of Service Discipline.  Such broad exercise of discretion, absent any explanation, tends to give the appearance of arbitrariness.  Certainly, in the absence of a justification for the derogation from typical practice, one might wonder about the motives of the charge layers or other statutory actors.

Thus, we are left with the puzzle why DMP is adamantly pursuing a prosecution where jurisdiction is highly dubious, to the point of bringing an appeal before the CMAC.  The judgment in MacPherson does not shed much light on this question, and we are left to speculate.  However, the context of this matter presents a troubling possibility that may hint at an abuse of process.

We know that a complaint was made in 2016 and was investigated by the CFNIS.  That complaint did not, initially, lead to any charge being laid.  Two years later, the complainant again pressed for something to be done, and the CFNIS ‘re-opened’ its investigation.  During this time, the Globe and Mail published its “Unfounded” series.  That may have been a catalyst for the complainant’s renewed complaint, or the CFNIS’ decision to re-open the investigation.

But there are two significant factors that are not readily in the public domain: We do not know the nature of the ‘new information’ that was purportedly uncovered.  We do not know the extent to which this ‘new information’ was relevant or whether it led to a conclusion that there was a reasonable prospect of conviction, when, before, there was not.  Second, we do not know whether, as has been typical (if reluctant) DMP practice when the Code of Service Discipline lacks jurisdiction, the matter was referred to a civil prosecutor.

Here’s my concern – and, granted, it is predicated upon a degree of speculation (albeit, informed speculation): Is it possible that the allegations and the investigation were referred to a civil prosecutor, and that civil prosecutor concluded that there was no reasonable prospect of conviction, and declined to pursue the matter?  Such a referral could have arisen after the first investigation commenced in 2016, or after it was re-opened in 2018.  And it might explain why DMP is insisting on pursuing a prosecution despite a jurisdictional hurdle.  After all, the CF in general, and the Office of the JAG specifically, are under pressure not only to ‘do something’ about sexual misconduct, but also ‘to be seen to be doing something’.  And we know from R v Stacey that even the ‘independent’ DMP can be influenced to change decisions based upon ‘external’ factors.

The question remains: in light of DMP’s willingness to refer matters to the civil criminal justice system, even (in select cases) where the Code of Service Discipline has jurisdiction, why is DMP so reluctant to refer this specific matter to a civil court of criminal jurisdiction?

 

One Consequence – Delay

One of the consequences of the decision by DMP to pursue this prosecution under the Code of Service Discipline is that it has delayed the resolution of the allegations.  This adversely affects the accused.  It adversely affects the complainant.  And it adversely affects the administration of justice.

The accused continues to have the ‘Sword of Damocles’ hovering above his head.  While the prosecution under the Code of Service Discipline has been terminated – for now – that does not mean that the accused will not continue to face these allegations.  DMP could have advised the CFNIS to lay a charge before the civil court of criminal jurisdiction.  Instead, DMP served a Notice of Appeal on 19 August 2021, challenging the legality of Commander Sukstorf’s judgment.  So, resolution of these allegations will be delayed further, notwithstanding that a civil court of criminal jurisdiction would clearly have jurisdiction over the allegations if a charge were laid in the civil criminal justice system.

Personally, I don’t think an appeal would have any reasonable prospect of success.  However, DMP has broad (one might suggest, nearly unfettered) discretion and resources to bring such an appeal.  Unlike an accused who wishes to be represented by Defence Counsel Services on appeal, DMP need not seek the approval of the Appeal Committee, created under article 101.19 of the QR&O, and acting under article 101.20 of the QR&O, in order proceed at Crown expense.  An accused must do so in order to be provided with legal services from Defence Counsel Services pursuant to sub-paragraph 101.11(1)(r) of the QR&O.

21 months have passed since the charges were preferred against MWO MacPherson by DMP, and 2 years have passed since he was charged.  We do not know if MWO MacPherson was subject to any administrative sanctions or limitations prior, or concurrent, to the laying of the charges.  But he has been waiting for at least 2 years to resolve the charges.

And the complainant has been waiting since April 2016 for this matter to be resolved.  Even if the matter were to be referred to the civilian criminal justice system without delay (and, in light of DMP’s Notice of Appeal, that does not appear to be in their contemplation at present), that process will require time to proceed, and there has already been two years of delay in which the prosecution has not advanced.

The administration of justice has been adversely affected.  Court Martial resources were assigned to a matter that, objectively, did not fall within the jurisdiction of the Code of Service Discipline.  Now, resources of the Court Martial Appeal Court (which ‘borrows’ judges from other courts) must be engaged.  The capacity for witnesses to recall events can fade over time.  And the confidence that members of the CF and the Canadian public can have in the ‘military justice system’ could be adversely affected by the decision to pursue a prosecution absent the jurisdiction to do so.

While the following is speculative, it is offered based upon a reasoned analysis.  If this matter is referred to the civilian criminal justice system, MacPherson may well seek a stay of prosecution based upon an infringement of his right to be tried within a reasonable time, as guaranteed by s 11(b) of the Charter.

The success of such an application is not a foregone conclusion.  We can anticipate that, even if the matter were to be referred to a civil court of criminal jurisdiction immediately, and even if the accused elects to proceed before the Provincial Court of Justice, it will take at least another 6 months before a trial is conducted.  (And, frankly, that is a highly optimistic prediction – it is more likely that it will take a year).  The delay from the date he was charged will clearly exceed the presumptive delay ceiling, established in R v Jordan, 2016 SCC 27, of 18 months for trials absent a preliminary inquiry.

However, there are two significant factors that are relevant to the calculation of delay.  Any delay attributable to the defence is subtracted from the delay applied to the presumptive ceiling.  And, even if the delay still exceeds the presumptive ceiling, the Crown can argue that ‘exceptional circumstances’ could justify such delay.

In MacPherson’s case, some of the delay could be attributable to the unsuccessful plea in bar of trial regarding the independence of the military judiciary.  The Crown would likely argue that delay from the notice of application until the judgment on 23 October 2020, should be deducted from the overall delay.  If the notice of application had been brought in, say, March 2020, the Crown could argue that 7 months should be deducted from the overall delay.  That would not reduce the delay below the presumptive ceiling, but it could contribute to a broader argument that the delay was nevertheless justified.

The accused could argue that, regardless of the unsuccessful plea in bar of trial decided in October 2020, DMP lacked jurisdiction to prosecute from the outset.  However, the Crown could offer the rebuttal that the jurisdictional issue would have been decided earlier, but for the obligation to address the plea in bar of trial relating to judicial independence.  In my view, there is merit to such a rebuttal.

The Crown may also argue that some of the delay, at least before the civil court of criminal jurisdiction, would be attributable to both the requirement to transfer jurisdiction to the civil court and a backlog created by the current COVID-19 pandemic.  However, the specific details regarding such arguments would turn on the specific circumstances of the court that is seized with jurisdiction.  Those details are not presently known.

While this is largely speculative, it remains illustrative of the impact of the DMP decision to pursue a prosecution that, objectively, is outside the jurisdiction of the Code of Service Discipline.  If a civil prosecutor is able to obtain a trial date in six months (which is likely overly optimistic) and is able to convince a judge that delay attributable to the unsuccessful plea in bar of trial should be deducted from the overall delay, the relevant delay could still amount to 23 months, 5 months more than the presumptive ceiling.  The Crown would then have to argue that the history of the Code of Service Discipline proceeding offered exceptional circumstances.  And it is here that the Crown’s argument could fail.

A civil court of criminal jurisdiction would likely conclude that DMP ought to have realized, from the outset, that the Code of Service Discipline lacked jurisdiction over the offence.  At the very least, it ought to have been recognized as a point of vulnerability.  And, in light of the fact that DMP had never before attempted to apply section 70 of the NDA retrospectively, a civil court of criminal jurisdiction would likely be reluctant to conclude that this presented ‘exceptional circumstances’.

It is more likely that the court might conclude, much as the CMAC concluded in R v Banting, 2020 CMAC 2, that this was an ill-advised test case:

[28]   That said, we do wish to state categorically that while the prosecution of Lieutenant Banting may not have risen to frivolous or vexatious conduct, we do consider the prosecution and the subsequent appeal, to have been questionable. It is apparent that military commanders and the prosecution intended to use Lieutenant Banting’s circumstances to test the limits of this Court’s reasoning in Golzari and Bannister. Those same commanders and the prosecution chose to use Lieutenant Banting’s circumstances to test the reach of Operation Honour within the military justice context. They chose to pursue the case against Lieutenant Banting in circumstances where a court would eventually conclude there existed no prima facie case and where the Canadian Armed Forces training manual authorized the acronym F.U.C.K. (Fight the fight; Uncontrolled bleeding; Communicate; Keep moving) as a mnemonic device. Based upon the subjective sensibilities of at least one of the perceived “complainants” in this case, that acronym would seem more offensive than any of the double entendres employed by Lieutenant Banting. The test case failed miserably…

 

In Banting, the issue was whether the respondent of an appeal by DMP deserved costs arising from DMP’s unsuccessful appeal.  As I explained in a Blog post entitled “Why is DMP bringing prosecutions and appeals without merit?”, from 4 May 2020, that matter presented rare circumstances in which a CF member was represented by privately-retained counsel in an appeal brought by DMP.  The judgment was driven, in part, by the lack of frequency of both: (a) representation of a CF member by privately-retained counsel; and, (b) the justification for costs arising from an appeal by the Crown.

However, the broader lesson for DMP was that test cases should not be brought unless there is a compelling reason to do so.  And I question whether there was, or is, a compelling reason in this particular matter, particularly in light or the tangible risk of compounding delay.

And all of this assumes that a civil prosecutor would pursue this prosecution if it were transferred to civil jurisdiction.  (And, similarly, that a civil prosecutor did not, previously, decline to pursue this prosecution.)

 

Conclusion

Commander Sukstorf’s decision and reasons in MacPherson do not come as a surprise.  There is a compelling reason why DMP has not, in the past 22 years, sought retrospective application of the jurisdiction of the Code of Service Discipline over allegations of sexual assault, arising in Canada, that purportedly occurred prior to 1 September 1999, when military jurisdiction was extended to such offences arising in Canada.  Moreover, DMP’s pursuit of such jurisdiction in MacPherson, stands in marked contrast with decisions by the CFNIS (presumably based, at least in part, on advice from military prosecutors) to lay charges of sexual assault before civil courts of criminal jurisdiction (or to refer them to civil prosecutors, where necessary) when it appears that jurisdiction cannot be asserted under the Code of Service Discipline.  Indeed, MacPherson stands in marked contrast with recent decisions by the CFNIS to lay charges of sexual assault before civil courts of criminal jurisdiction, even where the jurisdiction could clearly be asserted under the Code of Service Discipline.  It is difficult to reconcile these disparate decisions, particularly in the absence of any explanation offered by the CFNIS or DMP regarding the decision to proceed before civil courts in select cases.

It is worth considering whether this would be an appropriate circumstance for the Judge Advocate General, who has “… the superintendence of the administration of military justice in the Canadian Forces …” pursuant to section 9.2(1) NDA, to intervene.  Notwithstanding that DMP performs his functions with a degree of independence (a factor which Justice Fish reinforces in the Third Independent Review of the NDA), the JAG does have the power to “… issue instructions or guidelines in writing in respect of a particular prosecution …” pursuant to section 165.17(3) NDA.

In the present matter, in light of the interests of the complainant, the accused, and the administration of justice, it may be appropriate for the JAG to instruct DMP refer the matter to civilian prosecution, as was done with the investigation of Major-General Fortin, and to abandon the appeal before CMAC, once the relevant civilian prosecutor is seized of a prosecution before a civil court of criminal jurisdiction.

Such direction from the JAG could consider the requirement to be accountable for the proper use of limited judicial resources in light of a compelling judgment offered at first instance.  Such direction could take note of the fact that other ‘historical’ allegations, where the alleged offence(s) pre-dates 1 September 1999, have previously been referred to the civil criminal justice system.  Indeed, it could even take note of the fact that some allegations of sexual assault, which clearly fall within the jurisdiction of the Code of Service Discipline, have been referred to civil courts (often with little or no explanation for such derogation from the norm).

However, all of this assumes that the matter was not previously referred to a civil prosecutor and that the civil prosecutor did not decline to proceed due to the absence of a reasonable prospect of conviction.  I must admit, I am becoming increasingly curious why DMP is so adamantly pursuing jurisdiction in this matter.

 

 

[1] SC 1998, c 35.

[2] Lee Berthiaume, “Two senior Canadian Forces members charged with sexual assaults”, (16 September 2019), online: CBC News <https://www.cbc.ca/news/politics/forces-members-charges-sexual-assault-1.5285803>.

[3] Menaka Raman-Wilms, “Maj.-Gen. Dany Fortin charged with one count of sexual assault“, (18 August 2021), online: The Globe and Mail <https://www.theglobeandmail.com/politics/article-maj-gen-dany-fortin-charged-with-one-count-of-sexual-assault/>.

[4] The Honourable Morris J. Fish, C.C., Q.C., “Report of the Third Independent Review Authority to the Minister of National Defence”, (30 April 2021).  Recommendation #68 states:

Recommendation #68. The Declaration of Victims Rights should be brought into force as soon as possible, ensuring that victims investigated or prosecuted under the National Defence Act will be entitled to substantially the same protections as the Canadian Victims Bill of Rights affords. Until the Declaration of Victims Rights comes into force, and unless the victim consents:

(a) sexual assaults should not be investigated or prosecuted under the National Defence Act and should instead be referred to civilian authorities; and

(b) there should also be a strong presumption against investigating and prosecuting under the National Defence Act other offences committed against a victim.

Moreover, the National Defence Act should be amended to expressly incorporate, in substance, the rights and protections afforded by the Criminal Code to victims and to persons accused of sexual offences.