R v Stillman, 2019 SCC 40 – Further ‘After-Action Review’

Fear not Dear Reader, I don’t intend to belabour observations regarding the Stillman appeal before the Supreme Court of Canada.  However, I do feel obliged to offer some addition observations, in light of some helpful insights offered to me by colleagues.  My previous ‘After-Action Review’ was the effort of a single individual.  Most after-action reviews in which I participated in my military career were group efforts – that is, after all, one of the principal strengths of the after-action review process.  Regrettably, I am now an ‘army of one’, so you will have to bear with me.

In my earlier Blog, I raised the possibility that a panel member (or even a presiding officer at summary trial) could be improperly influenced by the ‘presumption of guilt’ that the Chief of the Defence Staff appears to be preaching in his crusade against ‘Harmful Incidents of Sexual Behaviour’ (HISB).

Those who might defend the present process (or even the future process that has been introduced by Bill C-77) might respond that the Code of Service Discipline has safeguards against such corrupting influences.  For example, Article 112.17 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) presents the oath taken by members of a Court Martial Panel:

I swear that I will duly carry out the duties of a member of the court martial panel according to law, without partiality, favour or affection and make true findings according to the evidence; and I do further swear that I will not, at any time whatsoever, disclose the vote or opinion of any particular member of this court martial panel, unless thereunto required in due course of law. So help me God.

[And Article 112.21 of the QR&O permits a secular solemn affirmation.]

No doubt the presiding military judge could (and, perhaps, would) instruct panel members that their decision must be based only on the evidence they heard at trial and upon the legal instructions the military judge provides to them, and that they must not be influenced by external factors.

However, ask yourself this: would the oath and possible judicial instructions be sufficient safeguards of a fair process when one or more panel members may be concerned about the potential impact on their career if they did not find the accused guilty.  If you were the accused, would that be sufficient to satisfy you?

Because that is the truly unsettling aspect of insidious decision-making.  How many CF members have encountered circumstances where the overt rationale behind a decision that affects them in an adverse fashion is not the true rationale.  Many public decision-makers learn quickly that, provided the overt justification can be defended (within the large margin of appreciation that courts afford to CF decision-makers concerning ‘military’ decisions), the true motivation need not be ‘advertised’.  Isn’t that one of the principal bases for many of the claims of sexual harassment and discrimination that have surfaced recently?

Certainly, an attempt by the chain of command to influence a court martial panel’s decision would likely constitute an obstruction of justice, contrary to paragraphs 139(3)(b) and (c) of the Criminal Code – which would also constitute a Code of Service Discipline offence  by virtue of paragraph 130(1)(a) of the National Defence Act.  And a military judge would likely explain to panel members that they must report to the military judge any attempt to influence them.

But do we really believe that most senior CF leaders would be so coarse and clumsy that they would be obvious in pursuing a reprisal against one or more panel members who did not vote ‘properly’?

Or would such adverse outcomes be subtle, without a clear quid pro quo: e.g. halted or slower career advancement; institutional isolation; or, passive ostracism. Such ‘pressure’ may well serve to encourager les autres not to acquit easily, or to ‘open the window so the reasonable doubt has a reasonable chance to escape’.  There are no overt protections in the NDA against ‘reprisals’ for having acted and decided as a panel member.  And, even if there were, such protections would stand little chance of success where the reprisals are subtle and indirect.  Besides, if those subtle reprisals were initiated by senior leaders, who would enforce such protections?

Frankly, there need not be any actual reprisals to skew the fairness of disciplinary decision-making.  The Chief of the Defence Staff has spoken loudly and clearly: a complainant is a victim, and where there is a victim, there must be an offender.  Canada expects that every panel member will do his or her duty …

Another potential challenge under section 11(d) of the Canadian Charter of Rights and Freedoms could arise from the number of panel members prescribed under the Code of Service Discipline.  With the elimination of ‘Disciplinary Courts Martial’ (which had three panel members)[1], an accused has a choice (where such a choice exists)[2] between a Standing Court Martial (judge alone) and a General Court Martial, which is comprised of a presiding military judge and a panel of five (5) members of the Canadian Forces.[3]

Where the accused is an officer, the panel will be comprised of five officers, of the same or higher rank as the accused.[4]  The senior member of the panel will hold the rank of lieutenant-colonel or higher.[5]  Where the accused is of a particularly senior rank (colonel or higher) additional provisos apply.[6]  Where the accused is a non-commissioned member (NCM), the panel will be comprised of two officers (one of whom will be a lieutenant-colonel) and three NCM, “…who are of or above both the rank of the accused … and the rank of sergeant.”[7]  Thus, a corporal will be tried by a panel comprised of a lieutenant-colonel, another officer, and three NCM who all outrank the accused.  However, a warrant officer or a lieutenant-colonel tried by General Court Martial could very well hold the same rank as some of the panel members.

The number of panel members in a General Court Martial is distinguishable from the number of jurors in a criminal proceeding in a province or territory.  In most circumstances, in Canada, a criminal trial before a jury in a Superior Court of Criminal Jurisdiction typically has twelve jurors.[8]  With alternates, this number can rise to 14.[9]  A criminal jury may continue even if it is reduced to 10 jurors where one or more jurors have been discharged due to an inability to continue.[10]

In the United States, in 435 U.S. 223 Ballew v. Georgia (No. 76-761), the US Supreme Court held that, although there is no right to a jury of twelve, the jury cannot be lower than 6.  This conclusion was based on empirical research that suggested that juries of 3, 4, or 5 jurors have a tendency, when they err, to convict an innocent person (described as a Type 1 error) and juries of 10, 11, or 12 jurors, when they err, have a tendency to acquit a guilty person (described as a Type 2 error).  It would appear that the ‘sweet spot’ for optimal group problem solving is a jury of 6, 7, or 8.

Consider as well, the judgment of the European Court of Human Rights in Martin v the United Kingdom, [2006] ECHR 890.  The court held, unanimously, that subjecting a civilian dependent of a British Army soldier to trial before a military tribunal, and thereby depriving him of a right to trial by civilian jury, constituted a violation of the accused’s right, under article 6(1) of the European Convention of Human Rights, “… to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”  This is analogous to the right under section 11(d) of the Canadian Charter of Rights and Freedoms.  Following this judgment, UK law was amended to provide for panels of up to 13 members where civilians were tried under military law.  One could speculate that if larger panels are warranted when trying civilians under military law, the same could hold true for trying military personnel.  After all – the objective of a fair and impartial tribunal applies to both military personnel and civilians.

The reason that the General Court Martial panel is comprised of an odd number of panel members is a residual vestige of an earlier version of the Code of Service Discipline in which the panel needed only a majority to make a determination of guilt, rather than unanimity.  The ‘majority vote’ for findings of guilt (and for determinations relating to mental disorder) was only eliminated in the 2008 amendments to the Code of Service Discipline[11] but little thought appears to have been given to reconfiguring the size of the panel.  It is possible that the size and composition of the General Court Martial panel could be challenged under both sections 7 and 11(d) of the Charter

And think about that for a minute: up until July 2008, a CF member could be convicted of a serious criminal offence on a 3:2 majority of a General Court Martial panel, or a 2:1 vole of a Disciplinary Court Martial panel.  It was not until a decade after the ‘modernization’ of the Code of Service Discipline, introduced by Bill C-25 in 1998 – following multiple reports into necessary improvements to the Canadian Forces’ disciplinary regime – that policy makers acknowledged the problematic nature of a process in which guilt could be determined by a simple majority of a panel of merely 3 or 5 people.

So, when the Supreme Court of Canada, or commentators like Richard Pound[12], praise the advancements in fairness of the Code of Service Discipline in which “… many of the unsatisfactory aspects of proceedings before military tribunals had been identified and addressed and regular reviews of the adequacy of the parallel system of military justice have been instituted, all designed to bring the system of military justice more into line with the civilian process…”[13] – perhaps some scrutiny is warranted regarding both the specific timeline, and the precipitating causes, of these changes.

For example, Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, was ‘rushed into production’ in a manner reminiscent of innovation during the Second World War, following the Court Martial Appeal Court judgement in R v Trepanier[14], which, like R v Beaudry[15], brought several court martial proceedings to a halt. The ‘ongoing evolution’ of fairness in military justice is slow, laborious, and can tend to be unpredictable.  With the recent enactment of Bill C-77, it also has the potential to regress into a system in which procedural safeguards will be reduced, thereby achieving the unstated objective of making it easier to ‘convict’ CF personnel of wrongdoing.

Additionally, as I (and others) have mentioned previously, there are other problematic aspects of the panel that could be challenged under section 11(d) of the Charter: rank restrictions on panel members, and the impact of rank and authority amongst panel members.

The role of the panel is to act as ‘trier of fact’.  Yet, it appears that, according to Parliament, NCM below the rank of Sergeant are not capable of acting as a ‘trier of fact’.  (And, prior to 1 September 2018, the minimum rank for an NCM on a General Court Martial panel was warrant officer – so let’s hear a HOORAH for the evolution of military justice).  Therefore, up until September 2018, no one below the rank of warrant officer was capable of performing the functions of a ‘trier of fact’.  However, Parliament has since recognized that sergeants are also capable of doing so.  Evidently, master-corporals and corporals are not up to the task – they are capable of performing other military functions, including risking life and limb in the battle-space, but not of acting as a ‘trier of fact’.

Perhaps it is because a CF member with limited experience in the CF could not be a capable trier of fact in the military environment.  Frankly, such an argument seems, on its face, to be specious, particularly in the absence of any basis for concluding that military experience is relevant to capacity to be a ‘trier of fact’.  However, even if such an argument had any merit, it would support a legislated requirement for minimum length of service, rather than minimum rank.

Perhaps the unspoken justification – the real justification – is that Parliament, the Governor in Council, and the CF policy makers who influence amendment of the Code of Service Discipline do not trust junior members of the CF to play any role in decision-making under the Code of Service Discipline.  (Except, perhaps, the junior NCM in the Canadian National investigation Service, CFNIS, who are permitted to lay charges under the Code of Service Discipline.  However, the strengths, weaknesses, and peculiarities of the CFNIS are best left to another Blog Article – or series of Articles.)

It cannot – or, at least, should not – be based upon the belief that the Code of Service Discipline must bend only to the whim of senior leaders in the chain of command.

Because this is the truly oxymoronic aspect of the Code of Service Discipline: it is allegedly a tool for commanders – a ‘function of command’ if you will – yet one of the principal arguments in defence of the purported fairness of the application of the Code of Service Discipline, particularly at the level of courts martial, is that the chain of command cannot exert improper control over its application.

Consider what the majority asserted in para 53 of R v Stillman:

The military justice system has come a long way. It has evolved from a command-centric disciplinary model that provided weak procedural safeguards, to a parallel system of justice that largely mirrors the civilian criminal justice system. Many of the key recommendations contained in the various reports referred to above have been implemented by Parliament through amendments to the NDA and associated regulations over the last 30 years. The continuing evolution of this system is facilitated by the periodic independent reviews mandated by s. 273.601 of the NDA, ensuring the system is rigorously scrutinized, analyzed, and refined at regular intervals. This speaks to the dynamic nature of the military justice system. Just as the civilian criminal justice system grows and evolves in response to developments in law and society, so too does the military justice system. We see no reason to believe that this growth and evolution will not continue into the future.

Putting aside the problematic evolution presented in Bill C-77, the majority of the apex court asserts that the process has evolved from a problematic command-centric model with weak procedural safeguards, to one that “… largely mirrors the civilian criminal justice system”.  So why must rank be a prerequisite for the ‘trier of fact’?  Standing and status within the community is not a prerequisite for selection of jurors in civil processes.

It appears that, generally, we cannot trust someone more junior than the accused to render a fair verdict, but we can trust someone who outranks the accused to do so.  What is the basis for this conclusion?

The only time a panel member might be junior in rank to the accused is if the accused is a general officer.  However, this exception appears to be based upon the fact that, where a general officer is the accused, the absence of such an exception would result in a very small pool from which to select panel members.  (And many general officers could, potentially, be precluded from serving on a panel due to their relationship with the accused or direct knowledge of the circumstances leading to the court martial.)

It also appears that it is OK for a panel member to be of the same rank as the accused, where the accused is an officer at least of the rank of captain, or an NCM at least of the rank of sergeant.  But what’s the policy rationale behind this?  Are policy makers afraid that a panel comprised of one or more junior NCM may be more inclined to acquit an accused of similar rank?  If that’s the rationale, it appears to present a rather jaded perspective.

That may not be the reason policy makers are so adamantly resistant to amending that aspect of the Code of Service Discipline.  However, in the absence of any reasonable rationale, one tends to speculate.  Frankly, there is likely a grain of truth to the suggestion that senior policy makers are concerned about what might happen if more junior members of the CF were permitted to serve on panels.

I suggest that this is indicative of a factor that policy makers prefer to avoid discussing: that, despite increasingly egalitarian perspectives in Canadian society, the hierarchy established in the CF will affect the fairness of decision-making.  The overt impact of rank and hierarchy on the dynamic within a General Court Martial panel is not something that civilian jurors must face.  It also appears to be something the CF policy makers prefer to avoid discussing.

This is one of the most ironic facets of the Code of Service Discipline: it exists to instil a ‘habit of obedience’ within the military hierarchy; yet, whenever anyone suggests that this ‘habit of obedience’ may adversely affect the fairness of disciplinary (or administrative) decision-making, such notions are waived away with some mumbled reference to ‘military necessity’, the continued support of the Supreme Court of Canada for a separate system of military justice, or similar justification.  There is, however, little discussion of these important nuances, and what little discussion there is, can end up being stifled by senior CF officials.[16]

This is a factor that the Supreme Court of Canada apparently ignored in Stillman – in part because it is more a question for a challenge under section 11(d) of the Charter and not section 11(f).  However, there will come a time that lawyers, courts, and policy makers will have to examine whether an accused can truly have a fair hearing where rank and hierarchy can directly or indirectly influence a determination of fact, where such a determination should not be dependent upon rank or hierarchy.

To that suggestion, some might respond: not so fast Fowler – the selection process and composition of a Court Martial Panel has already been subject to a challenge under sections 7 and 11(d) of the Charter, and courts martial have held that there was no problem: R v Master Seaman Middlemiss, 2009 CM 1001.

In Middlemiss, the Chief Military Judge, Colonel Dutil, held that:

1. The provisions regarding the composition of the panel of a General Court Martial based on the rank of the accused and the ineligibility of officers below the rank of captain and non-commissioned members below the rank of warrant officer to serve as panel members (as found in sections167 and 168 of the National Defence Act) did not violate sections 7, 11(d), or 15 of the Charter;
2. The procedure set out in article 111.03 of the QR&O and the methods and practices used by the Court Martial Administrator to appoint panel members and alternates at a General Court Martial did not violate sections 7 or 11(d) of the Charter; and
3. The exclusion of certain categories of persons – such as Reserve Force members on Class “A” Reserve Service – from the pool of eligible persons to be randomly selected by the Court Martial Administrator does not contravene sections 7 or 11(d) of the Charter.

Now, I do not propose to present a detailed examination of this judgment here (at least, not in this specific Blog article).  I do note that Colonel Dutil’s judgment has been cited favourably at least twice in subsequent courts martial: R v Corporal Wilcox, 2009 CM 2009 (by Military Judge Commander Lamont) and R v Ex-Ordinary Seaman Penner, 2013 CM 1005 (by Colonel Dutil himself).

That said, the judgment in Middlemiss is a judgment at first instance.  It could be distinguished in any subsequent application before a military judge and, in light of the fact that the Supreme Court of Canada was silent on horizontal stare decisis in Stillman, it is certainly open to a military judge, over a decade later, to re-evaluate the issue, particularly in light of legislative and judicial developments over the past decade.  Colonel Dutil’s judgment certainly is not binding on the Court Martial Appeal Court, and an appellate court’s judgment on the issue would certainly provide greater clarity.

Arguably, the combined effect of the apex court’s judgments in R v Moriarity[17] and Stillman is this: The Supreme Court of Canada asserts that, if you join the Canadian Forces, there are certain assumptions that apply.  First, you subject yourself to additional rules that would apply in every aspect of your life including (at least when you join the Regular Force) where it has absolutely no link to military context.  Second, if you are charged for having allegedly broken those rules by the CF, you have no right to a jury trial.

But here’s the rub: traditionally, Canadian Courts (including the Supreme Court of Canada) do not recognize or authorize a prospective waiver of rights where the individual waiving those rights does not have “full knowledge” of the consequences or exposure resulting from the waiver.  Consider the waiver of the right to silence (R v Hebert, [1990] 2 SCR 151) or the waiver of the right against unreasonable search and seizure (R v Bartle, [1994] 3 SCR 173).

I wonder if Canadian Forces recruiting forms or pamphlets will be amended accordingly…

[1] An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, SC 2008, c 29.

[2] National Defence Act, RSC 1985, c N-4 [NDA], subs 165.193(1) to (3), (7).  See also, NDA, ss 165.191 and 165.192.

[3] NDA, subs 167(1).

[4] NDA, subs 167(2).

[5] NDA, subs 167(6).

[6] NDA, subs 167(4) and (5).

[7] NDA, subs 167(7).

[8] Basarabas and Spek v The Queen, [1982] 2 SCR 730.

[9] Criminal Code, RSC 1985, c C-46, subss 631(2.1) and 643(1) [Criminal Code].

[10] Criminal Code, subs 644(2).

[11] An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, SC 2008, c 29, s 14.

[12] Richard Pound, “No surprises in SCC courts martial decision”, The lawyers Daily, July 29, 2019 (online).

[13] Ibid.

[14] 2008 CMAC 3, leave to appeal to the SCC refused.

[15] 2018 CMAC 4.

[16] “Investigation underway on whether top military lawyers suppressed damning report”, CTVNews.ca, January 11, 2018.

[17] [2015] 3 SCR 485.

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