R v MacPherson et. al.: Judicial Independence Redux
On 15 September 2020, the Chief of the Defence Staff (CDS) ‘suspended’ his CDS Designation Order, 2 Oct 2019 (the ‘2019 Order’), which, by that point, had been the subject of several judgments at first instance by three different Military Judges. The 2019 Order had become the subject of increasingly severe judicial treatment, culminating in a series of stayed prosecutions. It was likely the stayed Prosecution of Captain Iredale – who faced three distinct charges of sexual assault – that finally prompted action from the CDS. In light of the CDS’ ‘tough talk’ on eliminating sexual misconduct, he faced a choice: continue to ignore the declarations from the military judiciary and risk having the Code of Service Discipline grind to a halt (at least until the Court Martial Appeal Court of Canada (CMAC) heard appeals relating to the stayed prosecutions) or finally acquiesce to the judicial declarations.
In this game of juridical chicken, the CDS blinked.
After the prosecution of Captain Iredale was stayed – the fourth such order in a month – the CDS, apparently reluctantly, suspended the 2019 Order.
Director Military Prosecution (DMP) appealed (on behalf of the Minister) the judgments staying those prosecutions. In at least one matter – R v Capitaine Crépeau – the accused also cross-appealed the judgment dismissing an application (brought by way of a Notice of Constitutional Question) that sought a declaration of invalidity of key provisions of the National Defence Act (NDA) which apply to military judges as officers of the Canadian Forces (CF). The underlying argument of the Notice of Constitutional Question was that the statutory structure of the Code of Service Discipline, which captured military judges as officers of the CF, was distinguishable from the impugned 2019 Order, and also undermined the judicial independence necessary under s 11(d) of the Canadian Charter of Rights and Freedoms (Charter).
However, the CDS’ suspension of his impugned 2019 Order did not halt the applications for Charter review. Notwithstanding that the CDS had suspended (but not rescinded) his 2019 Order, three separate accused brought Charter applications alleging that the organizational structure of the Office of the Chief Military Judge (OCMJ) continued to undermine the judicial independence necessary under s 11(d) of the Charter. These applications were heard together before Military Judge Commander (Cdr) Sukstorf.
Ultimately, Cdr Sukstorf dismissed the applications, distinguishing the ongoing organizational context of the OCMJ from the 2019 Order. Contrary to commentary from some quarters, the stays of prosecution up to, and including, Iredale, did not sound the death knell of courts martial. The stays in those matters were directly linked to the CDS’ unwillingness to revoke or suspend his 2019 Order. They were not, as suggested by some, the result of frailties in the statutory framework. Although some applications (e.g. Crépeau) argued that the inclusion of Military Judges under the Code of Service Discipline undermines judicial independence, those arguments have, thus far, been rejected by Military Judges. I have previously suggested, and continue to contend, that in the forthcoming appeals before the CMAC the key matter to watch is the Cross-Appeal in Crépeau.
However, those appeals – which the Chief Justice of the CMAC, Bell CJ, recently ordered to be heard together before a bilingual judicial panel – will likely not be heard until January 2021.
This affords us an opportunity to review the recent judgement from Cdr Sukstorf in R. v. MacPherson and Chauhan and J.L., 2020 CM 2012 [MacPherson] and to consider whether military judicial independence remains uncertain.
I will start with a brief review of some of the key judgments that have led to the present circumstance. I will then turn to the issues of judicial independence raised in MacPherson. This will lead to a discussion of the role of the Military Judges Inquiry Committee (MJIC) and its relevance to judicial independence and military discipline. I will then examine the organization of the OCMJ and compare the impugned 2019 Order to the orders that establish and organize the OCMJ. This will be followed by some observations on the institutional independence of Military Judges and courts martial. I will conclude with a discussion about what might have been an appropriate remedy, had a Charter breach been identified and some brief closing observations on the relevant legislative framework.
A review of the applications over the past 8 months offers pertinent context. Not long after the 2019 Order was issued, defence counsel began to challenge judicial independence in the wake of both the 2019 Order and the failed prosecution of the (then) Chief Military Judge, Colonel Dutil. Initially, Military Judges simply declared the 2019 Order of no force or effect, thereby ‘solving’ the problem of its impact on judicial independence (e.g.: R v Master Corporal Pett, 2020 CM 4002 [Pett]; R v Corporal D’Amico, 2020 CM 2002 [D’Amico]). If the 2019 Order was of no force or effect, it could not adversely impact their independence.
Military Judges also held that the process under the MJIC served as a disciplinary code for Military Judges which took precedence over the Code of Service Discipline.
Respectfully, I did not find the reasoning behind that analysis particularly convincing in February of this year, and I still don’t. That issue resurfaced in MacPherson, and I address it below.
The problem that arose over the course of the past several months was that the CDS refused to rescind, or even suspend, the impugned 2019 Order. Courts martial are ad hoc statutory courts, convened on a case-by-case basis, whose jurisdiction is limited to the matter(s) before the specific court martial. Since declarations at courts martial apply only to that specific proceeding, the CDS’ continued refusal to rescind or suspend the impugned 2019 Order prompted defence counsel to bring repeated Charter applications pertaining to judicial independence. Military Judges were then obliged to hear and rule on those applications. Clearly, the Military Judges were not impressed by the CDS’ inaction.
This culminated, initially, with an ultimatum issued by Cdr Sukstorf in R v Major Bourque, 2020 CM 2008. The CDS ignored the ultimatum, obliging military prosecutors to resolve the matter by way of guilty plea in order to avoid the consequences of the CDS’ inaction.
But that ‘reprieve’ was temporary.
Charter applications were again brought in Edwards, Crépeau, Fontaine, and, eventually, Iredale. In light of the CDS’ intransigence, Military Judges escalated their response. Lieutenant-Colonel (LCol) d’Auteuil, the Deputy Chief Military Judge (and, since 21 March 2020, the de jure Acting Chief Military Judge) and Cdr Pelletier both ordered stays of prosecutions in the four above-mentioned courts martial.
To be clear: the stays were ordered not because the Military Judges felt that their independence was irreparably undermined. The stays were issued in light of the perception that the CDS’ inaction, in the face of repeated judgments that declared that the 2019 Order contravened section 11(d) of the Charter and clearly called for the CDS to rescind the order, undermined the Rule of Law.
As I noted in previous Blogs, the CDS did not heed the repeated message from the Military Judges. It appears that, when the prosecution of Captain Iredale was thwarted by a stay of prosecution, the CDS finally relented.
Notwithstanding that DMP (on behalf of the Minister) appealed all four orders staying prosecution, on 15 September 2020, the CDS suspended his 2019 Order.
Applications had already been initiated in three separate courts martial: Master Warrant Officer (MWO) MacPherson, Warrant Officer (WO) Chauhan, and ‘J.L.’. When the CDS suspended his 2019 Order, counsel for the three accused amended their applications to address what defence counsel argued was an ongoing issue affecting judicial independence. The basis of their amended applications was the organization of the OCMJ, which is based upon orders distinct from the 2019 Order. Counsel also raised the same Notice of Constitutional Question regarding the statutory framework of the Code of Service Discipline applicable to Military Judges that had been raised, and dismissed, in Crépeau.
These applications were heard, jointly, by Cdr Sukstorf on 7 and 8 October 2020. Written reasons were delivered 23 October 2020.
R v MacPherson et. al.
Notwithstanding that the CDS suspended the impugned 2019 Order, defence counsel argued that the CDS’ decision to suspend, rather than rescind, the impugned order was specifically intended as a message to the military judiciary that the CDS still purported to exercise disciplinary jurisdiction over them. In light of the dialogue that has been conducted between the military judiciary and the CDS over the past 8 months, this argument was not surprising.
Counsel for the applicants argued that the decision to suspend, and not revoke, the 2019 Order, and the specific wording of the Suspension Order, were specifically crafted to send the following message:
Within the ongoing ‘dialogue’ between the military judiciary and the CDS, the applicants argued that the CDS was sending as clear a message in his Suspension Oder of 15 September 2020 as he was in the 2019 Order: the military judiciary remains subject to the ‘disciplinary supervision’ of the Executive.
In other words, the applicants argued that the 2019 Order was not the only order that subjected the military judiciary to the disciplinary control of the Executive. The combined effect of MOO 2000007 and CFOO 3763 had essentially the same effect as the impugned 2019 Order.
However, Cdr Sukstorf held that the MOO/CFOO did not have the same effect as the 2019 Order and, consequently, the independence of the judiciary was not undermined.
In her judgment, Cdr Sukstorf held that the applicants posed four questions:
Cdr Sukstorf answered the first three questions in the negative, rendering the fourth question moot.
Just as DMP appealed Edwards, Crépeau, Fontaine and Iredale, we can assume that there is an elevated likelihood that one or more of the applicants in MacPherson will appeal this judgment. However, unlike DMP, who may appeal matters as he sees fit, if an applicant (i.e. accused) wishes to be represented by Defence Counsel Services for an appeal of a judgment at first instance, the applicant must first apply to the Appeal Committee (art 101.19 of the QR&O) which will determine if a ‘person tried’ by court martial will be permitted to be represented by Defence Counsel Services on appeal (art 101.20 of the QR&O). Notwithstanding that such applications are necessary; the threshold to justify such representation is not exceeding difficult to meet, and, in light of the ongoing issues and the present combined appeal before the CMAC, I would anticipate that any such application would be met favourably.
Since the issues raised in MacPherson will likely be raised on appeal, there is merit in examining the nature of the judgment.
Cdr Sukstorf’s judgment offered a fairly robust analysis not just of judicial independence under the Code of Service Discipline, but within criminal justice systems generally.
Citing Valente v The Queen,  2 SCR 673, Cdr Sukstorf observed that LeDain J, writing for a unanimous Supreme Court of Canada (SCC), held that judicial independence turned on three general factors:
Although Cdr Sukstorf’s judgment provided some insight into the first two factors, it was the third factor that lay at the heart of the defence applications.
In canvassing the relevant case law, Cdr Sukstorf also observed that:
Cdr Sukstorf also observed, at para 40 of MacPherson, that the evaluation of judicial independence (as well as for impartiality) was predicated upon the ‘reasonable person test’: would a reasonable (i.e. someone who is informed of the relevant statutory provisions, their historical background, and the traditions surrounding them, and after viewing the matter realistically and practically) conclude that military judges are capable of acting as an independent and impartial tribunal?
For anyone interested in this issue, there is value in comparing the impugned CDS Designation Order – which the CDS eventually suspended in light of repeated judicial stays of prosecutions – and the MOO and CFOO that created the OCMJ. Although the impugned 2019 Order can be found at Annex A of the judgment, and the MOO and CFOO can be found at Annexes C and D respectively, these documents may be accessed here: MOO 2000007, 7 Feb 2000 – OCMJ; CFOO 3763, 27 Feb 2008 – OCMJ.
We must also remember that the 2019 Order was not the first such order. There were prior orders of a similar nature of which the 2019 Order was simply the most recent. Not surprisingly, the content of the 2019 Order was predicated, in large measure, on the prior orders. What set the 2019 Order apart was that it was issued while DMP was attempting to prosecute the (then) Chief Military Judge. In light of that emerging dynamic, counsel at Defence Counsel Services seized upon relevant issue of judicial independence.
Two of the principal reasons why Cdr Sukstorf dismissed the applications in MacPherson were:
Regarding the latter point, Cdr Sukstorf held, at para 60 of MacPherson:
A military judge also has the same immunity from liability as a judge of a superior court of criminal jurisdiction. Immunity is crucial if military judges are to fulfil their sworn duty to assess the evidence and apply the law. Without this protection, military judges might be prevented from freely expressing themselves in their reasons as to whether they believe a witness is telling the truth. However, the impugned CDS Order as drafted directly implied that military judges were not immune under the CSD in relation to what they say and do in the performance of judicial duties. [Footnotes omitted]
At para 64 of MacPherson, Cdr Sukstorf reiterated her summarized ratio decidendi from para 42 of D’Amico (which purported to summarize Cdr Pelletier’s ratio decidendi in Pett):
(a) Any CDS order (issued by the Executive) that is focused solely on military judges in their function or role as military judges must be found of no force and effect;
(b) Any CDS order that applies to all military members and officers, but in its operation, happens to capture military judges in their role as officers in the CAF, does not present the same risk and systemic concern undermining the independence of military judges;
(c) The CDS Order 2019 conflicts with and undermines the statutory intention set out by Parliament in the NDA that military judges are to be judged by their judicial peers with respect to their judicial conduct; and
(d) The CDS Order 2019 is declared to be of no force and effect.
Respectfully, I contend that Cdr Sukstorf over-particularized what the impugned 2019 Order stated.
While I would agree that a CDS order that “… focused solely on military judges in their function or role as military judges …” would likely undermine judicial independence, the 2019 Order was not quite so specific.
Objectively, the 2019 Order (like the previous versions) did not focus solely on the function or role of military judges as military judges. It broadly identified the relevant ‘commanding officer’ for matters of discipline for officers (military judges) and non-commissioned members (NCM) posted to the OCMJ. Moreover, once could argue (and counsel for the Canadian Military Prosecution Service has argued) that the 2019 Order (and the previous incarnations) were necessary in light of the clear intent expressed by the Governor in Council at art 4.091(2) of the QR&O that “The Chief Military Judge shall not exercise the powers or jurisdiction of a commanding officer or an officer commanding a command in respect of any disciplinary matter or a grievance.”
In other words, even though the Chief Military Judge (CMJ) commands the OCMJ, he (or she) cannot exercise the command functions, established by or under the authority of the NDA, with respect to the Code of Service Discipline or grievances. While the 2109 Order did not expressly indicate that it was intended to address the jurisdictional ‘gap’ arising from art 4.091(2) of the QR&O, that is clearly the intent of the order. The broad nature of the jurisdictional directive in the 2019 Order is directly relevant to whether the organizational structure arising under CFOO 3763 also infringes judicial independence.
Part of the dissonance in this judgment is that Cdr Sukstorf appears to draw a distinction between the nature of the impugned 2019 Order and CFOO 3763, even though the two orders appear to implement similar disciplinary jurisdiction. Moreover, MacPherson, like Pett and D’Amico before it, is predicated upon the rationale that Parliament intended the MJIC to be the principal tool for disciplining military judges.
Respectfully, it isn’t.
The MJIC is not a Disciplinary Code
Similar to the parallel process for the Canadian Judicial Council, established for federally-appointed civilian judges under the Judges Act, RSC 1985, c J-1, the MJIC process has a narrowly-defined remit: upon receipt of a request from the Minister (in writing) or receipt of a complaint or allegation (again, in writing) the MJIC process identifies two specific functions:
Prior to the failed prosecution of the Chief Military Judge, the Chairperson of the MJIC designated Justice Jocelyne Gagné (of the Federal Court of Canada) to review the ethics complaint received from the Office of the Judge Advocate General and determine if an inquiry should be started. As Justice Martineau articulated in the background of Canada (Director of Military Prosecutions) v Canada (Office of the Chief Military Judge), 2020 FC 330, the Office of the Judge Advocate General chose to proceed with an ethics complaint instead of a Code of Service Discipline proceeding.
However, that was a discretionary decision by a complainant in the MJIC process. Nothing under the NDA obliged them to proceed first with an ethics complaint. And, after Justice Gagné recommended against convening an inquiry and the Chairperson of the MJIC informed the Office of the Judge Advocate General that no inquiry would be started, the military police investigation either continued or was re-initiated (and the public record is not entirely clear how the Military Police investigation resumed). Frankly, a reasonable observer would likely conclude that, having failed to obtain the desired result from the MJIC, someone in the Office of the Judge Advocate General decided that the Code of Service Discipline wasn’t a bad idea after all.
The MJIC process is no more a substitute for a Code of Service Discipline proceeding than the civilian equivalent is a substitute for a criminal prosecution.
Moreover, like the Canadian Judicial Council, the MJIC process represents an administrative tribunal (Moreau-Bérubé v New Brunswick (Judicial Council),  1 SCR 249; Girouard v Canada (Attorney General), 2020 FCA 129). In light of the absence of any express priority in the legislation, there is a compelling argument that, if criminal wrongdoing is alleged, a criminal or Code of Service Discipline process would necessarily need to be concluded first.
As I have discussed previously in the context of Administrative Review under Defence Administrative Order and Directive (DAOD) 5019-2, there is a natural tension between the ‘right to silence’ in criminal or Code of Service Discipline proceedings, and the ‘right to make informed representations’ in an administrative process. Moreover, where section 7 Charter rights (‘life, liberty, and security of the person’) are not engaged in administrative proceedings, there is no consequent Charter right to silence (indeed, there is a compelling rationale for the respondent in an administrative process not to remain silent).
Consequently, where a military judge is accused of criminal misconduct or a breach of the Code of Service Discipline, not only is there no legislated priority for the MJIC process, under both Charter considerations and common law principles, there is a compelling argument that the criminal or Code of Service Discipline process ought to be exhausted first.
That said, circumstances could arise in which an MJIC inquiry would be justified, but no criminal or Code of Service Discipline charges would arise. Consider the aftermath of the infamous ‘bonnet and crinolines’ judgment from McClung JA in R v Ewanchuk, 1998 ABCA 52. In his decision, he suggested that the manner in which the 17-year-old victim was dressed was somehow relevant to the issue of consent. McClung JA concluded that the accused’s actions were “… far less criminal than hormonal …” and that the victim could have stopped the assault with a “… well-chosen expletive, a slap in the face or, if necessary, a well-directed knee.”
The case was unanimously overturned by the SCC (R v Ewanchuk,  1 SCR 330), with the majority judgment written by Justice Major. In a concurring judgment, Justice L’Heureux-Dubé described Justice McClung’s decision as perpetuating “archaic myths and stereotypes”.
In reply, McClung wrote a brief letter to the National Post characterizing Justice L’Heureux-Dubé’s judgment as a “… graceless slide into personal invective …” and suggesting that her ‘personal convictions’ “… delivered again from her judicial chair, could provide a plausible explanation for the disparate (and growing) number of male suicides being reported in the Province of Quebec.” This letter drew broad criticism and a complaint to the Canadian Judicial Council. McClung apologized profusely in a subsequent letter to the National Post, claiming that he was not aware of a personal situation that rendered his comment particularly hurtful to Justice L’Heureux-Dubé and expressing deep regret for his comment.
The Canadian Judicial Council expressed strong disapproval of Justice McClung’s comments; however, it stopped short of conducting an inquiry.
I am not suggesting that any military judge would make comments of this nature. However, this illustrates that judicial conduct can fall short of contravening the Criminal Code or Code of Service Discipline, but could still warrant, at the very least, initial consideration by the MJIC.
My key point is this: it cannot reasonably be posited that Parliament intended the MJIC to be used as the primary or sole means of disciplining military judges. The MJIC was clearly created for a narrow purpose: evaluating fitness to remain a judge in light of complaints that may (or may not) include criminal or disciplinary misconduct. Parliament clearly expected that Military Judges would be subject to the Code of Service Discipline distinct from the MJIC process.
Parliament also empowered the Governor in Council to enact regulations “… for the organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions of [the NDA] into effect.” Subject to express provisions empowering the Governor in Council or the Treasury Board to make regulations other than under section 12 of the NDA, and any regulations made by the Governor in Council under subsection 12(1) of the NDA, the Minister may also “… make regulations for the organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions of [the NDA] into effect.” Parliament also expressly empowered the Minister to organize units, formations, commands, and other elements of the Canadian Forces.
Structure of the OCMJ
The Governor in Council expressly gave command of the OCMJ to the Chief Military Judge, but also imposed a very specific constraint: the CMJ cannot exercise these command functions in respect of any disciplinary matter or grievance (art 4.091 of the QR&O).
As an aside, even though ‘Section 3’ of Chapter 4 of the QR&O – which includes only art 4.091 – is entitled ‘Office of the Chief Military Judge’, art 4.91 of the QR&O does not create the OCMJ. Section 17 of the NDA expressly grants the Minister the power to organize units, formations, commands, and other elements of the CF. The Minister establishes these units, etc. through Ministerial Organization Orders (MOO), and MOO 2000007 establishes the Office of the Chief Military Judge. Technically, there is nothing under the NDA that obliges the Minister to create an Office of the Chief Military Judge. The regulation enacted by the Governor in Council at art 4.091 of the QR&O presumes that the Minister will establish (or has established) an Office of the Chief Military Judge.
While it would be highly unlikely – to the point of absurdity – that the Minister would ‘dis-establish’ the Office of the Chief Military Judge when a Governor in Council regulation presumes its existence, both the Minister and the Governor in Council are part of the Executive. If the Executive wished to dis-establish the OCMJ, it certainly has the power to do so. The Office of the Chief Military Judge is not mentioned anywhere in the NDA.
The lack of any statutory establishment of the Office of the Chief Military Judge is all the more remarkable in light of amendments to the NDA in 2014 as part of an Omnibus Amending Act, in which Parliament expressly named, at para 17(1)(a) of the NDA, the commands called the ‘Royal Canadian Navy’, the ‘Canadian Army’, and the ‘Royal Canadian Air Force’. Previously, no commands were ‘named’ in the NDA; the names of commands were established in the relevant MOO. Remember: these are commands, not ‘services’ – even though many people still erroneously refer to members of the CF ‘joining’ or ‘retiring from’ one of these commands as if they were services. As I have observed previously, this is a mischaracterization of the nature of the CF and its commands.
Thus, while Parliament insisted on establishing these commands, by specific names, in statute, the Office of the Chief Military Judge – which exists principally to ensure that the Code of Service Discipline is administered in a manner consistent with the Rule of Law and the ‘supreme law of Canada’ – is not also granted the same institutional certainty. It is difficult to reconcile the absence of statutory institutional security and independence with the constitutional requirement for an independent and impartial tribunal.
The MOO & CFOO of the OCMJ
As I mention above, the 2019 Order was not focussed solely or principally on the role of Military Judges as Military Judges. On the contrary, it was designed specifically to address the constraint at art 4.091 of the QR&O (much as previous iterations of the order had done). When the CDS finally suspended this order – and only after the furor that arose when the Iredale court martial was stayed – he clearly did so reluctantly. Any reasonable reading of the Suspension Order would likely result in the conclusion that:
Were the applicants in MacPherson justified in asserting that the CDS Suspension Order contained a not-so-thinly veiled threat to military judges?
Frankly, that turns on what CFOO 3763 states and does.
Para 5 of CFOO 3763 expressly recognizes that the CMJ does not have the power and jurisdiction of an Officer Commanding a Command with respect to disciplinary matters or grievances arising within the OCMJ. Para 8 reiterates that the commanding officer of the OCMJ (presumably referring to the CMJ) will not exercise the jurisdiction of either a CO or an officer commanding a command with respect to any disciplinary matter. Para 9 then clearly states that as personnel in the OCMJ are considered to be on strength at NDHQ (which, itself, is odd, since they are actually on strength of a unit organized and established by the Minister) disciplinary jurisdiction will be exercised in accordance with the CFOO establishing Canadian Forces Support Unit (Ottawa), CFSU(O), which has since been re-established as CFB Ottawa-Gatineau.
Consequently, the person who now exercises the powers and jurisdiction of a CO with respect to the application of the Code of Service Discipline for all persons posted to the OCMJ is the Commandant of CFB Ottawa-Gatineau. That is the same officer who, under the impugned 2019 Order, was granted disciplinary powers and jurisdiction over all NCM (and only the NCM) on strength of the OCMJ. As a result of the CDS’ Suspension Order, instead of the Deputy Vice Chief of the Defence Staff (an officer holding the rank of at least Major-General/Rear-Admiral) exercising disciplinary jurisdiction over military judges, it is now an officer at the rank of colonel.
But, according to Cdr Sukstorf in MacPherson, building upon the prior judgments in Pett and D’Amico, that does not undermine their independence, because the MJIC process has primacy over the application of the Code of Service Discipline.
The problem with this conclusion is that it presumes that the MJIC process has a primacy that is not actually established under the NDA.
While the MJIC process is provided for under Part III of the NDA – the Code of Service Discipline – it is a conceptual stretch to suggest that Parliament expected the MJIC process to prevail over (or at least precede) any Code of Service Discipline prosecution of a military judge. Had Parliament anticipated such a primacy, it would have expressly provided for it. It didn’t. Frankly, this primacy is entirely the construct of the Military Judges who have been presiding over these applications.
There is nothing in the CDS’ Suspension Order that would suggest that he agrees with the Military Judges’ conclusions regarding the MJIC process. On the contrary, the Suspension Order clearly signals that the CDS is of the view that, while the impugned 2019 Order is suspended, the disciplinary regime established under CFOO 3763 will prevail.
The Military Judges are of the view that the Code of Service Discipline does not apply to them in the same manner that it applies to other CF personnel. The legislative regime does draw express distinctions. For example, Military Judges cannot be tried by summary trial, even though officers of the same rank as the current Military Judges could, potentially, be tried by summary trial. However, Cdr Sukstorf’s view (shared by LCol d’Auteuil and Cdr Pelletier) that the MJIC must be used prior to any Code of Service Discipline proceeding does not appear to be shared by the CDS.
We must remember that the charges that were brought against Colonel Dutil pre-dated the impugned 2019 Order (although there had been a similar order in place at the time). And, in the future, if the Executive believes that there are grounds to lay Code of Service Discipline charges against Cdr Sukstorf, Cdr Pelletier, or any other military judge, there is nothing barring them from doing so before engaging the MJIC process (or after a decision is made not to conduct an inquiry). And there is no evidence to suggest that the CDS agrees with the conclusion that the MJIC must have primacy. After all, the CDS did not appear to agree that his 2019 Order contravened the Charter and had to be revoked. He only did so when Military Judges started staying prosecutions in the face of his intransigence. His Suspension Order clearly indicates that this was the principal catalyst for the order.
Under MOO 2000007 and CFOO 3763, Military Judges face the same disciplinary circumstances that they faced under the impugned 2019 Order – they fall within the disciplinary jurisdiction of a non-judicial officer, a member of the Executive. If anything, they are worse off, as that officer is now a Colonel, not a Major-General. Nothing has changed.
In MacPherson, Cdr Sukstorf provides an extensive review of the administrative independence (paras 42 to 49) and institutional independence (paras 50 to 75) enjoyed by Military Judges. In terms of Administrative Independence, the applicants argued that Military Judges and the OCMJ lacked budgetary and administrative independence. Cdr Sukstorf rejected these arguments, concluding:
 Firstly, it is important to highlight that a MOO does not displace the authority set out in the legislative provisions of the NDA which enshrines the responsibilities and protections that military judges hold in their adjudicative function. Secondly, the applicants did not provide any evidence to support exactly how a revocation of the OCMJ would directly compromise the adjudicative functions of military judges other than to contend that since the court reporters were service members they could be reassigned at the will of the executive and, consequently, there would be no court reporters available to support courts martial. However, given the legislative and regulatory primacy of the provisions within the NDA and the Queen’s Regulations and Orders for the Canadian Forces (QR&O) which underpin the court martial system and the role and responsibilities of military judges, as well as the Court Martial Administrator, absent any specific evidence to the contrary, the court is entitled to rely upon the presumption that the MND will exercise his duties consistent with the expressed legislative intent of Parliament and as enacted in the NDA. The recommendations made by former C.J. Lamer of the SCC and former C.J. Lesage of Ontario, are important; however, their failure to be implemented to date are not in and of themselves sufficient to suggest that the necessary administrative independence is lacking.
 In short, the onus was on the applicants to present evidence to overcome the presumption that the military judiciary does not have control over the administrative functions identified in Valente. Hence, a reasonable, well-informed person having looked at the NDA and its subordinate regulations would perceive that military judges enjoy administrative independence. The Court, therefore, must answer the first question in the negative.
In a previous Blog article on 22 May 2020, I identified a significant distinction between courts martial and civilian courts regarding the capacity of the courts to control their own processes. Unlike their civilian counterparts, Military Judges do not control the venues at which many, if not most, courts martial are conducted. Those venues are typically under the control of the commanding officer of the unit at which the proceeding arises. While the Court Martial Administrator (CMA) can convene a court martial at such locations and thereby direct that the unit support the conduct of the court martial proceeding, the commanding officers of those units are also subject to direction from the chain of command that is headed by the CDS. This tension was highlighted when the COVID-19 pandemic arose and the CDS issued very restrictive direction to units. This direction directly impacted the capacity of the CMA to convene courts martial and Military Judges to control their process.
Based upon the judgment in MacPherson, this specific issue does not appear to have been raised. However, I contend that this is but one example of how Military Judges do not enjoy comparable administrative and institutional independence anticipated by Justice LeDain in Valente.
Coincidentally, in the CDS TASKORD 004 – OP LASER 20-01, dated 9 June 2020, the CDS specifically authorized the travel of CF members to participate at or in support of courts martial. The CDS specifically mentioned that the CF must continue support to the resumption of Courts Martial in liaison with the CMA by providing: access to DND andCF premises that are normally available or provided for holding a Court Martial; the necessary administrative and IT support, as well as unit personnel to staff the Court Martial; and the provision of non-medical masks and personal protective equipment to ensure the safe conduct of court martial procedures. As a result, the Acting Chief Military Judge concluded that “… it appears that the impossibilities and incapacities temporarily preventing the holding of a court martial no longer currently apply in the circumstances.” 
This facilitated the activities of courts martial, albeit 3 months after the initial ‘lockdown’. This appears to have been the first time in the CF COVID-19 response that consideration was expressly made by the CDS for the conduct of courts martial.
I am not suggesting that this eventual consideration arose from my Blog article 2 weeks earlier (although it is a heck of a coincidence). I do suggest that this is an object example that, while civilian courts truly control their own process in a manner that demonstrates reasonable institutional independence, the same cannot be said of courts martial in their present configuration under statute, regulation, and policy. The most telling part of the Acting Chief Military Judge’s letter is his admission that it was the CDS’ order that barred the conduct of courts martial. I note too that the letter was issued on the second day of the MacPherson hearing.
And, while a MOO or CFOO does not, and cannot, alter legislation, there are considerable gaps in the legislative framework of the Code of Service Discipline in which policy (which is what, ultimately, a MOO and CFOO represent) can directly influence the independence of the tribunal.
The impact of MOO 2000007 and CFOO 3763, which is comparable to the impact of the impugned 2019 Order, does not necessarily mean that the appropriate remedy would have been a stay of prosecution. The stays in Edwards, Crépeau, Fontaine and Iredale were all issued because the CDS’ continued refusal to suspend the impugned 2019 Order undermined the Rule of Law. As I indicated previously, the Military Judges took a graduated approach to their Charter declarations. They gave the CDS an opportunity to consider their judgments and to respond in this unique and dynamic dialogue. It was only after he clearly disregarded Cdr Sukstorf’s ultimatum in Bourque that the military judges escalated their response to stay prosecutions. This approach, eventually, had the desired impact, and the CDS suspended his 2019 Order.
The manner in which the CDS suspended his order continued the dialogue. The CDS signalled that he was not inclined to yield power or jurisdiction. It was consequently open to the military judges to signal that the exercise of disciplinary jurisdiction under CFOO 3763 was as untenable as the impugned 2019 Order. After all, the two orders served the same function. Such a conclusion would have been consistent with the prior judgments and with the justification for the stays in Edwards, Crépeau, Fontaine and Iredale.
Cdr Sukstorf need not have stayed the prosecution. This is a new(ish) issue. It appears that the CDS was attempting to appease the Military Judges while also asserting his authority. Let’s face it – General Officers do not like to have their orders questioned. It would have been open to Cdr Sukstorf to have issued an ultimatum similar to that in Bourque. She could have signalled to the CDS that reliance on CFOO 3763 was as problematic as reliance on the impugned 2019 Order. She could have signalled that the CDS was attempting to be a little too ‘clever’. That would have been consistent with the judgments pertaining to the impugned 2019 Order over the past 8 months and it would have been consistent with a graduated approach to the Charter issue.
However, that would have also required Cdr Sukstorf to acknowledge that the current structure of both the OCMJ and the Code of Service Discipline fails to safeguard military judicial independence. And that would have been inconsistent with the portions of the judgments in Pett and D’Amico that purported to examine issues distinct from the impugned 2019 Order, such as the role of the MJIC and the application of the Code of Service Discipline to Military Judges.
Instead, it appears that Cdr Sukstorf distinguished the impact of CFOO 3763 from the 2019 Order. Respectfully, her explanation, offered at paras 79 to 90 is not particularly clear.
The Legislative Framework
Part of the challenge arising from Pett and D’Amico was that neither application raised a Notice of Constitutional Question. Although the applications in both cases focused on actions of the Executive (namely, the CDS’ decision to issue the impugned 2019 Order) the specific statutory framework was not directly challenged. Yet both Cdr Pelletier and Cdr Sukstorf embarked on analyses of the legislative structure of the Code of Service Discipline. By the time that the legislative regime was directly challenged in Crépeau, the Military Judges had already drawn the conclusion that the MJIC pre-empted the Code of Service Discipline. They were clearly reluctant to resile from that position.
In terms of whether section 12, 18, and 60 of the NDA contravene paragraph 11(d) of the Charter, Cdr Sukstorf adopted the same analysis as LCol d’Auteuil in Crépeau and Cdr Pelletier in Iredale. As her fellow Military Judges did, Cdr Sukstorf answered this question in the negative based upon the supposed primacy of the MJIC process. Respectfully, in light of my comments above regarding the limited jurisdiction of the MJIC, I remain unconvinced by this conclusion. However, this topic is the subject of the cross-appeal in Crépeau and we will see what the CMAC decides in the new year.
 R v Leading Seaman Edwards, CMAC-606; R c Capitaine Crépeau, CMAC-607; R c Artilleur Fontaine, CMAC-608; R v Captain Iredale, CMAC-609.
 R v Lippé,  2 SCR 114. At para 40 of MacPherson, ibid, Cdt Sukstorf states: In Valente (No. 2), the CJ Howland of the Ontario Court of Appeal described the test a little more practically where the reasonable person is one who is informed of the relevant statutory provisions, their historical background, and the traditions surrounding them, and after viewing the matter realistically and practically.” The footnote for this comment states: “R. v. Valente (2). An appeal from this judgment to the Supreme Court of Canada was dismissed, December 19, 1985. S.C.C. Bulletin, 1985, p. 1496. S.C.C. File No. 17583. Reported in full,  S.C.C. No. 77 in the SCC data base. Also see Note at (1985), 1985 CanLII 25 (SCC), 52 O.R. (2d) 779. See Headnote.” The SCC judgment mentioned in the footnote is the same SCC judgment identified in paras 29 and 30 of MacPherson. Presumably, the suggestion is: R v Valente (No. 2) 1983, 41 OR (2d) 187 (ON CA); aff’d Valente v The Queen,  2 SCR 673.
 National Post, Letters, 26 February 1999.
 National Post, Letters, page A8, 2 March 1999.
 National Defence Act, RSC 1985, c N-5 [NDA], subs 12(1).
 Ibid, subs 12(2).
 Ibid, s 17.
 Economic Action Plan 2014 Act, No. 1, SC 2014, c. 20, s 168.
 For some inexplicable reason, para 6 of the CFOO then states that “After adjudication of a grievance by the commanding officer of the Office of the CMJ in his capacity as a commanding officer, the next senior authority for the grievance is the CDS.” Presumably, this passage distinguishes between the CMJ’s functions as ‘an officer with the powers of an Officer Commanding a Command’ and the CMJ’s functions as a commanding officer. However, art 4.091(2) of the QR&O clearly states that the CMJ cannot exercise the powers and jurisdiction of either a commanding officer or an officer commanding a command in respect of any disciplinary matter or a grievance. If para 6 of the CFOO is referring to the CMJ as the “… commanding officer of the Office of the CMJ …” – as it appears to do – it is clearly incorrect at law. That duty and function would fall to another officer – specifically, the Commander of CFB Ottawa-Gatineau.
 CFOO 0002 was reissued on 29 October 2019 amplifying MOO 2018033, which organized CFB Ottawa-Gatineau. Personnel posted to the OMCJ are present at CFB Ottawa-Gatineau, which would be sufficient to give the Commandant CFB Ottawa-Gatineau jurisdiction. That makes it all the more puzzling that the CFOO purports to assert that these personnel are, simultaneously, on strength of both the OCMJ and NDHQ.
 Resumption and maintenance of the activities of the court martial with the in person presence of participants, A/CMJ Letter dated 8 October 2020, para 2.