MPCC Criticism of the Military Police
February 15, 2024Incompetence & Intransigence in Grievance Adjudication – Part I
March 15, 2024
Section 129 of the NDA is not the problem …
10 March 2024
[Editorial Note: I wish to thank my friend and colleague, Lieutenant-Commander Pascal Levesque, PhD (retired) for the insightful comments and suggestions that he offered on my initial draft. It is an immeasurable source of assistance in any endeavour to have friends and colleagues who are more gifted than you are.]
When I read my copy of the Globe & Mail yesterday morning, I came across an OpEd piece entitled “The Canadian military’s overly broad law on punishment is archaic – and demands reform”, authored by Tim Dunne, a retired Canadian Forces (CF) Public Affairs Officer. Mr. Dunne is not a lawyer, although he has an interest in military justice and writes frequently on the subject. I encounter his OpEd pieces in various news publications; I suspect his past work as a Public Affairs Officer has provided him with connections in the news media, and perhaps even some bona fides among editorial staff.
I disagree with some – even much – of what Mr. Dunne writes, and the article in yesterday’s Globe & Mail is no exception. And one of the reasons for my disagreement with his most recent offering is that it is predicated upon a fundamental error of law. Mr. Dunne wrote: “Section 129 can be applied in summary hearings (formerly summary trials) – a formal but condensed proceeding in which a commanding officer or a designated officer presides as both judge and jury …”.
And that is simply incorrect.
And to be clear, we are not talking about a difference of opinion here. We’re talking about what practitioners in my profession often refer to as “black letter law”. Mr. Dunne erred when he stated that a service offence such as s 129 can be prosecuted (he used the term “applied”) in a summary hearing. While charges arising under s 129 of the National Defence Act (NDA) could be, and frequently were, prosecuted before summary trials, summary hearings, which replaced summary trials on 20 June 2022, have no jurisdiction over any service offences, including the service offence under s 129 of the NDA.
That was not the sole factor that Mr. Dunne raised in his OpEd piece; however, it was a significant factor, and it is one that informs many of the other purported shortcomings that he raises in his commentary. And, as a result, I suggest that his descriptions of those other shortcomings are similarly problematic.
That doesn’t mean that there are not shortcomings with the current Military Justice at the Unit Level (or MJUL). There are many. And I plan on addressing several of those shortcomings in the coming days. However, the offence described at s 129 of the NDA is not the problem that Mr. Dunne suggests that it is.
Consequently, what I propose to do in the present Blog post is the following:
- I will elaborate on why, following the bifurcation of the Code of Service Discipline under Bill C-77, Mr. Dunne is incorrect when he asserts that the offence under s 129 of the NDA may be prosecuted before a summary hearing;
- I will describe, briefly, where there was some chicanery relating to charges under s 129 of the NDA before Bill C-77 bifurcated the Code of Service Discipline;
- I will explain why many of the objections that Mr. Dunne raises in his OpEd regarding the use of s 129 of the NDA are not compelling; and
- I will highlight some of the frailties in the current MJUL which I believe can give rise to unfair or unjust actions and determinations.
And before delving into specific concerns that I have with the OpEd published by “Canada’s National Newspaper”, I wish to point out that s 129 of the NDA has been the subject of scholarly commentary by at least two of my colleagues who also served in the Office of the JAG (OJAG). The late Major Edmund Thomas (ret’d) had drafted short papers on the subject. My friend and colleague had served for a number of years in Defence Counsel Services, and the prosecution of the offence under s 129 of the NDA was of particular concern to him. Unfortunately, I do not believe that they are easily accessible publicly.
Colonel J-B Cloutier (retired) served, at different times in his career, as both a military prosecutor and defence counsel.[1] His last position in the CF was Director of Defence Counsel Services. J-B’s LL.M. thesis was entitled “L’utilisation de l’article 129 de la Loi sur la défense nationale dans le système de justice militaire canadien”. It was published in the Revue de droit de l’Université de Sherbrooke and can be found here. As you can likely surmise, it is written in French. However, if your skills and knowledge in that Official Language of Canada is not sufficient to review his article, I recommend that you do so using publicly available translation platforms. Although it was published 20 years ago, Colonel Cloutier’s analysis remains pertinent and much of it has found its way into judgments of courts martial and the Court Martial Appeal Court of Canada (CMAC). If you are interested in this subject, it is worth a read.
Bifurcation of the Code of Service Discipline
Bill C-77 introduced several changes to the National Defence Act (NDA), including significant changes to the Code of Service Discipline. Not all of these amendments came into force at the same time. Indeed, significant changes to the Code of Service Discipline did not come into force until 20 June 2022, three years (less a day) after Bill C-77 received Royal Assent.
These amendments essentially bifurcated the Code of Service Discipline. Up until that point, the Code of Service Discipline was characterized as a “two-tiered” system that permitted the prosecution of “service offences”. Service offences included both unique military offences created by the NDA (e.g., Absence without Leave, contrary to s 90 of the NDA) as well as other offences “… under an Act of Parliament …” including Criminal Code offences (NDA, s 130) and even offences under law applicable outside Canada (NDA, s 132), although this latter category of offence is rarely prosecuted.
However, when the relevant portions of Bill C-77 came into force on 20 June 2022, the changes were not merely superficial, such as replacing the term of art “summary trial” with “summary hearing” or eliminating a specific punishment in the summary justice process. These amendments bifurcated the Code of Service Discipline, creating two distinct and separate processes. The newly created “service infractions” – which are non-criminal infractions distinct from “service offences” – are prosecuted solely before summary hearings (NDA, s 162.4). Service offences, which used to be prosecuted before summary trials and/or courts martial, are now prosecuted solely before courts martial (NDA, ss 161.1, 166, 173).
Examples of Prior Chicanery
Prior to the bifurcation of the Code of Service Discipline under Bill C-77, there were, I suggest, abuses arising in the prosecution of charges under s 129 of the NDA when those charges were prosecuted before officers presiding over summary trials. Summary trials, like the summary hearings of today, were presided over by officers who were not independent and who lacked the legal skills and knowledge of judges. However, the ‘saving grace’ to summary trials was that, by virtue of what were then s 162.1 of the NDA and art 108.17 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), most charges under s 129 of the NDA would permit the accused to elect trial by court martial. [With the bifurcation of the Code of Service Discipline, both s 162.1 of the NDA and art 108.17 of the QR&O were repealed.]
At least, they should have permitted such election. However, around 2019, I noticed that CF personnel were increasingly being denied the right to elect trial by court martial when charged under s 129 of the NDA and in circumstances where such an election should have been offered to them. I have written about this phenomenon previously, including:
Rory Fowler “Some Observations on ‘Military Justice’ at Summary Trial – Conclusion” (13 June 2022) online: Law Office of Rory G Fowler, Blog <http://roryfowlerlaw.com/some-observations-on-military-justice-at-summary-trial-conclusion/>
Rory Fowler “Noonan v AGC, 2023 FC 618 – An unsurprising result and its second-order implications” (5 May 2023) online: Law Office of Rory G Fowler, Blog <http://roryfowlerlaw.com/noonan-v-agc-2023-fc-618-an-unsurprising-result-and-its-second-order-implications/>
During, and shortly before, 2019, the Director of Military Prosecutions (DMP) and the Canadian Military Prosecution Service (CMPS) experienced what military prosecutors likely viewed as a series of setbacks in the prosecution of charges under s 129 of the NDA. Many of these prosecutions resulted in acquittals. In some, even when the accused was convicted of some charges before a court martial, the accused was acquitted of one or more charges under s 129 of the NDA.
In other words, obtaining a conviction – at court martial – for charges laid under s 129 of the NDA, was not the arbitrary cakewalk suggested in Mr. Dunne’s article.
I began to notice several matters in which persons were charged under s 129 of the NDA, and where the charges did not relate to “… military training, maintenance of personal equipment, quarters or work space, or dress and deportment …”, but where election for court martial was improperly withheld from the accused. Those legal terms of art were significant.
Prior to the bifurcation of the Code of Service Discipline, under what was then sub-art 108.17(1) of the QR&O, where an accused was charged under s 129 of the NDA, the “presiding officer” could decline to offer the accused an election for court martial if the alleged misconduct charged under s 129 of the NDA related to “… military training, maintenance of personal equipment, quarters or work space, or dress and deportment …” and where the presiding officer concluded that “… the circumstances surrounding the commission of the offence [were] sufficiently minor in nature that … a punishment of detention, reduction in rank or a fine in excess of 25 per cent of monthly basic pay would not be warranted if the accused person were found guilty of the offence”. As a matter of practicality, what that second proviso really meant was that, if the presiding officer did not offer an election for court martial, those powers of punishment would not be available to the presiding officer. And it was common to the point of near universality that presiding officers would draw that conclusion in order to retain jurisdiction and deny the accused a right to elect trial by court martial.
So, for charges laid under s 129 of the NDA, the key proviso was the restriction that election could be withheld “… only where the offence relates to military training, maintenance of personal equipment, quarters or work space, or dress and deportment …”. And what we started to encounter were some very awkward and contrived justifications, such as those arising in the summary trials that were judicially reviewed in Noonan v Canada (Attorney General), 2023 FC 618 [Noonan].
So, while I agree that there was some chicanery under the Code of Service Discipline when it came to the prosecution of charges under s 129 of the NDA, I disagree with Mr. Dunne’s proposition that the fault lies with the nature of the offence or that provision. The problem was how it was treated at summary trial. And that is no longer an issue that requires reform; since 20 June 2022, and contrary to what Mr. Dunne asserts in his OpEd piece, the offence described under s 129 of the NDA cannot be prosecuted before a summary hearing; it can only be prosecuted before a court martial. And military judges, unlike “presiding officers”, are extensively trained in, and markedly experienced with, the Code of Service Discipline. They are subject to appellate review if they misapply the offence at s 129 of the NDA.
Criticisms in the OpEd
A significant portion of Mr. Dunne’s OpEd appears to focus on the potential abuse that could arise in the prosecution of the offence at s 129 of the NDA before a summary hearing. So, the statement that Mr. Dunne attributes to an unnamed retired NCO is largely moot. Section 129 cannot turn a summary hearing into a “Kangaroo Court” because summary hearings have no jurisdiction over that offence. [And, as an aside, I have difficulty understanding why a former member of the CF has much to be worried about in terms of “retribution by the military police”. If he is no longer subject to the Code of Service Discipline, there is not much that they could do to him, unless he frequents defence establishments. I regularly criticize the military police – and with good reason – and as questionable as much of their conduct may be, they have not been foolish enough to attempt any retribution against me.]
Nevertheless, Mr. Dunne does raise other criticisms of the offence. His opening proposition is that the offence at s 129 of the NDA is based on antiquated concepts dating back several centuries. Essentially, his argument is the sophism “… this is an antiquated offence; therefore, it is bad …”. He then proceeds with what can be summarized as two distinct propositions. First, he argues that s 129, when prosecuted at court martial (which is the only way it can now be prosecuted), is too vague and can be used to prosecute any minor perceived misconduct, even that which would not warrant criminal sanction. He also suggests that s 129 can be used as an improper ‘substitute’ for more serious criminal offences (such as sexual assault, contrary to s 271 of the Criminal Code, and incorporated as a service offence by virtue of s 130 of the NDA).
If it’s old, it must be bad …
Readers of this Blog will be familiar with criticism that I have levelled at intransigence in the face of reform of several aspects of the administration of the affairs of the CF. When it comes to specific institutional “received wisdom”, I often encounter the justification “… but we have always done it that way …”. This, too, is a sophism. Within the CF, such arguments are often produced whenever someone suggest changing any aspect of beloved institutions such as Royal Military College of Canada (RMC). And that is but one example. Institutions grounded heavily in tradition, such as the CF, will inherently be resistant to change. And the excuse “… but we have always done it this way …” is devoid of analytical merit.
The argument “… this is antiquated, so it must change …” represents a similarly hollow sophism. While s 129 of the NDA is indeed based upon historical precedent, so are sections 7 and 11(f) of the Canadian Charter of Rights and Freedoms (Charter). These provisions are based, in part, on articles 39 and 40 of the Magna Carta of 1215, which are reflected in human rights documents ranging from the Universal Declaration of Human Rights, to the American Bill of Rights, to the European Convention on Human Rights.
The utility of a law must be examined on its merits and the analysis must be predicated upon the specific strengths and frailties of that law. And these must be examined in terms of their practical effect on the application of that law.
Too Broad or Vague
Again, while it may have arisen that an accused prosecuted by a summary trial may have been subject to overly broad or vague definition of the offence by a presiding officer, this offence cannot be prosecuted at summary hearing. And, if the provision was misapplied, the fault would have resided with the presiding officer, not the statutory provision. And, as in Noonan, the presiding officer’s application of the law would be subject to review. Moreover, when the offence was prosecuted at summary trial, particularly if election for court martial was withheld (either lawfully or, as in the case of Noonan, unlawfully) the powers of punishment that could be exercised by the presiding officer would not have given rise to a criminal record (see NDA, s 249.27). And, if election for court martial was withheld, the presiding officer could not impose a punishment of detention.
Section 129 can still be prosecuted at court martial. I anticipate that there will be fewer such prosecutions in the future. I anticipate that the misconduct previously prosecuted under s 129 of the NDA will now be prosecuted as service infractions before summary hearings. And that is where we must be vigilant in terms of identifying chicanery and injustice. And, again, the fault there does not lie with s 129 of the NDA.
And when s 129 is prosecuted before court martial, the military judges who preside over such prosecutions are markedly distinguishable from presiding officers who presided over summary trials, and the officers conducting summary hearings (OCSH) now. Military judges are experienced lawyers. They must have at least 10 years at the Bar of a province or territory in order to be appointed as a military judge and most who are appointed have markedly more experience than that. The military judges who have been appointed over the past 25 years since the coming into force of Bill C-25 were experienced legal officers with an understanding of military law obtained over years of working in that environment. And, subject to any forthcoming judgment from the Supreme Court of Canada in Edwards et al v R, they enjoy judicial independence (which OCSH clearly do not).
But perhaps the most important point to note here is that the interpretation of the offence at s 129 of the NDA is not based solely upon the wording of the statute. The nature of the offence has repeatedly been the subject of judicial scrutiny and judgment, including from the CMAC. The principal governing judgments include (to name but a few):
R v Latouche, 2000 CanLII 29664 (CMAC), 6 CMAR 173
From these judgments, we know that a prosecution of an offence under s 129 requires more than merely demonstrating that the chain of command is upset with a subordinate.
In particular, the CMAC has recognized that:
[24] Section 129 is a broad provision that criminalizes any conduct judged prejudicial to good order and discipline in the CF. Subsection 129(1) creates the offense while subsection 129(2) deems a number of activities to be prejudicial. In R v Winters (S.), 2011 CMAC 1, 427 N.R. 311 at para 24 Létourneau J.A. summarized the constituent elements of a section 129 offence as follows:
When the charge is laid under section 129, other than the blameworthy state of mind of the accused, the prosecution must establish beyond a reasonable doubt the existence of an act or omission whose consequence is prejudicial to good order and discipline.
[25] Proof of prejudice is an essential element of the offence. The conduct must have been actually prejudicial (Winters, supra, paras 24-25). According to R v Jones, 2002 CMAC 11 at para 7, the standard of proof is that of proof beyond a reasonable doubt. However, prejudice may be inferred if, according to the evidence, prejudice is clearly the natural consequence of proven acts; see R v Bradt (B.P.), 2010 CMAC 2, 414 N.R. 219 at paras 40-41. [Tomczyk, paras 24 and 25]
This description was cited by Mosely JA, writing for a unanimous bench of the CMAC at para 67 of Golzari, following which, he held:
[68] In my view, Tomczyk, when read as a whole, does not require the prosecution to prove the additional element of a standard of conduct required of the accused such as, in the present circumstances, a duty to disclose destination particulars on entering upon the base. Accordingly, I agree with the Appellant [DMP] that the military judge erred in law in acquitting the Respondent on this charge. While that conclusion is sufficient to dispose of the appeal with respect to the third charge, I will comment briefly on the respondent’s second argument.
However, proof of prejudice to good order and discipline was not some ephemeral or arbitrary standard:
[78] Prejudice in its ordinary grammatical sense means “harm or injury that results or may result” (Concise Oxford English Dictionary). The addition of the words “to the” before “prejudice” incorporates an element of risk or potential and the expression, read as a whole, does not require that harmful effects be established in every instance. Though evidence of actual harmful effects may exist, it is not required for conduct to be punished in the context of military discipline. Military discipline requires that conduct be punished if it carries a real risk of adverse effects on good order within the unit; this is more than a mere possibility of harm. If the conduct tends to or is likely to adversely affect discipline, then it is prejudicial to good order and discipline. [Golzari, para 78]
And, in addition to the prohibited act (actus reus), the prosecution must also prove that the accused had a guilty mind (mens rea). Where the prosecution is predicated upon contravention of a regulation, order, directive, etc. (NDA, subs 129(2)], that means that the prosecution must prove that the accused knew (or ought reasonably to have known) that he or she was contravening a regulation, order, etc. Where the prosecution does not rely upon contravention of a regulation, order, etc., the prosecution need only prove that the accused intended to perform the particularized conduct, and not that the accused intended to prejudice good order and discipline (Latouche). Whether the ensuing harm is prejudicial to good order and discipline is a separate determination under the actus reus. And when the allegations concern neglect, the applicable mens rea is that associated with the criminal or penal concept of criminal negligence (for a recent example, see R v Franzen, 2022 CM 3007, para 73 to 75).
It is true that the offence at s 129 of the NDA can potentially ‘criminalize’ any contravention of “… regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof …” or “… any general, garrison, unit, station, standing, local or other orders …”. It can also criminalize actions, conduct, or neglect that do not contravene specific orders or directives, but nevertheless prejudices good order and discipline. It does so in order to maintain discipline, efficiency, and morale of the CF. While some people may assert that the offence is overbroad or vague to the point that it contravenes principles of fundamental justice, that assertion has been tested, repeatedly, before the CMAC. And the skilled advocates at Defence Counsel Services have brought different arguments in different appeals regarding that proposition. And the offence has withstood such scrutiny.
What we must also remember, and what the Supreme Court of Canada has held in matters such as R v Stillman, 2019 SCC 40, is that the Code of Service Discipline exists to maintain the discipline, efficiency, and morale of the CF, in times of peace and war. When the Crown in Right of Canada decides to participate in an armed conflict, or to deploy His Majesty’s forces raised by Canada, we cannot reasonably expect Parliament to foresee all potential conduct, acts, or neglect that might be detrimental to operations, discipline, efficiency, or morale of the CF. And we cannot expect the leadership of the CF to refrain from dealing with conduct that harms the efficiency, discipline, and morale of the CF while we wait until Parliament adopts a specific offence prohibiting that very specific conduct. Indeed, that standard of specificity is not necessarily required for all civilian criminal offences.
There is a legitimate reason to retain an offence where the pith and substance of the mischief is undefined: not to catch all misconduct, but to catch conduct that might occur during operations that we cannot reasonably predict. For example, smoking is not a criminal offence (it is, at most, regulated). However, smoking in an operational context that could alert enemy to the presence of a concealed position could have catastrophic consequences that merits more than regulatory sanction.
Section 129 is not the sole service offence in which the prohibited conduct is not expressly specified. And even the Criminal Code creates offences in which the prohibited conduct is either expressed in broad terms or is not specified with the particularity that Mr. Dunne seeks. Section 124 of the NDA creates an offence of “negligent performance of military duty”. Some people view this as the “more serious cousin” of neglect to the prejudice of good order and discipline under s 129 of the NDA. And s 124 of the NDA shares many characteristics with the offence of “criminal negligence” under s 219 of the Criminal Code, which also criminalizes a broad range of potential misconduct.
Moreover, as I mention, supra, we will invariably see fewer prosecutions under s 129 of the NDA as the chain of command relies increasingly on service infractions to prosecute minor allegations of misconduct. And while a person might reasonably have some misgivings about the ‘new’ MJUL, the problem does not lie with s 129 of the NDA.
Improper Substitute
The suggestion that s 129 of the NDA is problematic because it is used as an improper substitute for more serious offences has little merit. In part, this is because the offence under s 129 of the NDA is not the sole, or even the most frequent, ‘alternative’ offence upon which prosecutors rely when prosecuting serious criminal offences under the Code of service Discipline. Mr. Dunne describes, in a somewhat veiled manner, a prosecution of a senior officer for contravention of both s 129 of the NDA and s 271 of the Criminal Code (sexual assault) incorporated into the Code of Service Discipline under s 130 of the NDA.
The manner in which Mr. Dunne describes the prosecution does not make it clear whether these charges were, in fact, laid “in the alternative”. Based upon the description offered, it is also possible that four distinct charges were laid for four distinct incidents or, what litigators might describe as transactions.
Consequently, I tried to peel back the onion a bit in order to provide a better explanation. Based upon the information in the OpEd, it appears that Mr. Dunne is describing the prosecution of Lieutenant-Colonel Bernier, Court Martial Docket 201558, the sentencing for which was reported at R v Bernier, 2025 CM 3015. If I am correct, then the two counts of “conduct to the prejudice of good order and discipline” (charges 2 and 4) were laid “in the alternative” to two charges of sexual assault (charges 1 and 3) under section 271 of the Criminal Code and laid under s 130 of the NDA. As is typically the case, the two charges of sexual assault were also laid “in the alternative” to the two charges of “conduct to the prejudice of good order and discipline”.
The use of charges “laid in the alternative” is not unique to offences describing sexual misconduct. Under the Code of Service Discipline, charges of a similar nature may be laid “in the alternative” in order to ensure that the full scope of misconduct may be addressed in the event that the evidence that is presented differs from what is expected. [And, for the uninitiated, that arises more frequently than you might imagine. A prosecutor can prepare diligently, reviewing the evidence repeatedly and in depth, and interviewing witnesses to ensure that their anticipated evidence is clear. Then, when the witness testifies, something completely different arises …]
For example, a CF member charged with theft contrary to s 334 of the Criminal Code (incorporated into the Code of Service Discipline under s 130 of the NDA), could be charged with “stealing” under s 114 of the NDA as an alternative. And each charge would be laid “in the alternative” to the other. A CF member charged with insubordination (or “insubordinate behaviour”) under s 85 of the NDA might, depending upon the circumstances, be charged with “disobedience of a lawful command” contrary to s 83 of the NDA, in the alternative. The use of alternative charges does not contravene the Canadian Charter of Rights and Freedoms and serves the purposes of military justice both by ensuring the relevant charges are prosecuted and putting the accused on notice for the full scope of her or his jeopardy.
Mr. Dunne selected a prosecution that involved charges under s 129 laid in the alternative to charges of sexual assault. Presumably, he selected this specific example because he believed that it supported his claim that the offence under s 129 is problematic. However, while there are occasional circumstances in which charges under s 129 of the NDA were laid in the alternative to sexual assault, a more frequent ‘alternative’ is the offence at s 93 of the NDA, “disgraceful conduct”. Indeed, Professor Elaine Craig of Dalhousie Law School presented an argument in a 2020 paper[2] that suggested that the military justice system failed victims of sexual misconduct when it used such alternatives in guilty plea resolution excessively, and that, presumably, the accused thereby evaded conviction for the offence for which they should have been convicted.
Professor Criag raised some valid concerns in her paper, and, while I disagree with some of her assertions and conclusions, what her paper illustrates is that the offence under s 129 of the NDA is not the sole, or even principal, “alternative” to sexual assault that had been prosecuted under the Code of Service Discipline. Thus, while Mr. Dunne appears to try to taint the nature of s 129 with the spectre of “improper substitution for sexual assault”, that assertion does not withstand scrutiny. The prosecution in Bernier is not illustrative of a weakness in s 129 as an offence. Nor does it necessarily identify a weakness in the prosecution of sexual assault in the military justice system.
Mr. Dunne described that, as a result of guilty plea resolution, the accused pled guilty to the two offences under s 129 of the NDA and the charges relating to sexual assault were stayed (i.e., the prosecutor did not proceed with those charges, but they were not withdrawn either). Mr. Dunne offers his own description of the nature of guilty plea resolution negotiations.
However, guilty plea resolutions under the military justice system are not markedly different than under the civilian criminal justice system. And I know because I have participated as counsel in such negotiations and processes in both systems.
Mr. Dunne alludes to the supposed distinction that a CF member can avoid certain mandatory sentencing provisions that would normally arise when a person is convicted of sexual assault (in either the civilian criminal justice system or the military justice system), by pleading guilty to section 129 of the NDA. While Mr. Dunne expressly mentions registration under the Sex Offender Information Registration Act (SOIRA), other mandatory orders can include collection of DNA samples (a “DNA order”). And, while registration under SOIRA is a significant factor, I would caution people from jumping to conclusions about what it entails based upon what they may have seen on American TV.
However, the same is true if a CF member pleads guilty to any other alternative offence instead of sexual assault, including, for example, s 93 of the NDA. Thus, the shortcoming – if, indeed, there is a shortcoming – does not lie with the offence under s 129 of the NDA.
A distinction than can be drawn between the military justice system and the civilian criminal justice system is that, under the former, certain sentences for certain offences listed at s 249.27 of the NDA will not give rise to a criminal record under the Criminal Records Act. In the example that Mr. Dunne gave, when the offender was convicted of two counts under s 129 of the NDA and sentenced to a reprimand and a $2000.00 fine, he would not have received a criminal record. However, on any form that asks if he has been convicted of an offence under an Act of Parliament, he would have to indicate ‘yes’.
I note, tangentially, that this was not a joint submission on sentencing. It was what some might characterize as an open guilty plea. The military prosecutor argued for a sentence of reduction in rank. Defence Counsel, LCdr Patrice Desbiens, argued for a reprimand and a fine of $2,000.00 (which was what was eventually imposed). Had the sentencing judge imposed the penalty requested by the military prosecutor, Major Doucet, then Major Bernier (as he would have subsequently been addressed) would have had a criminal record.
However, the application of s 249.27 of the NDA is not unique to the offence under s 129 of the NDA. Section 249.27 lists other potential ‘alternative’ charges under the NDA, including: s 85 (insubordination); s 86 (quarrels and disturbances); s 95 (abuse of subordinates); s 97 (drunkenness). It doesn’t list the offence that is most typically used as a so-called alternative to sexual assault: s 93 (disgraceful conduct).
What Mr. Dunne actually appears to be criticizing is the nature of plea resolution and what DMP prosecutors select as alternative charges. And what he does not acknowledge or explain is that such plea negotiations also arise in the civilian criminal justice system in a similar manner. And, while charges are not typically laid “in the alternative” in civilian criminal justice system in the same manner as in the military justice system, the civilian criminal justice system also gives rise to a similarly flexible approach to prosecution when circumstances precipitate plea resolution.
For example, if Mr. Dunne is, in fact, discussing the sentencing in Bernier, he is referring to what can be characterized as sexual misconduct at the lower end of the spectrum. And when I say this, it is not my intention to minimize the impact of the offender’s action or to suggest that the offender’s misconduct should be ignored or otherwise disregarded. But allegations of sexual assault cover a broad spectrum of misconduct, and the response to such allegations will generally be tailored to the specific context and facts.
In comparison, similar matters prosecuted in the civilian criminal justice system, have resulted in guilty pleas to assault simpliciter under s 266 of the Criminal Code (which also avoids mandatory registration under SOIRA) in lieu of a guilty plea to sexual assault. Alternatively, in a matter of comparable severity, R v Berseth, 2019 ONSC 888 (an appeal heard by the Superior Court of Justice for Ontario as a Summary Conviction Appeal Court), the accused pled guilty to sexual assault, contrary to s 271 of the Criminal Code. The Crown sought 60 days in jail and 18 months’ probation as well as ancillary orders (such as a SOIRA order and a DNA order, which are mandatory upon conviction). Mr. Berseth sought a conditional discharge. The trial judge imposed a conditional discharge with 15 months’ probation.
As a result of the conditional discharge, Mr. Berseth was not subject to a mandatory SOIRA order or a mandatory DNA order. Since he was not convicted, he did not receive a criminal record. In comparison, LCol Bernier was convicted of a service offence, even though it would not generate a criminal record.
And, if we’re talking about reform of the Code of Service Discipline, I note – as I have noted before – that conditional discharges are not available in the military justice system. Only absolute discharges are permitted, and those are much more rare than conditional discharges due to the nature of absolute discharges.
What Mr. Dunne does not acknowledge is that, in some circumstances, particularly where the Crown must rely on frail evidence or markedly reluctant witnesses, some prosecutors will even resolve allegations of criminal misconduct with a Peace Bond under s 810 of the Criminal Code. With a Peace Bond, there is no finding of guilt and certainly no conviction.
Mr. Dunne does not provide a compelling explanation that the mere existence of the offence under s 129 of the NDA gives rise to a military justice system that does not take the prosecution of criminal offences seriously. The example he offers demonstrates that resolution of prosecutions by guilty pleas will involve a degree of compromise from both prosecutors and defence counsel. The same is true of the civilian criminal justice system. The flexibility for such negotiations differs in the military justice system – and, arguably, makes it more practicable to achieve such resolution – but that is a far cry from a failed system.
It appears that Mr. Dunne is relying, obliquely, upon previous arguments by other commentators, such as Professor Craig, that the military justice system compromises the prosecution of serious offences such as sexual assault by permitting accused to plead to non-sexual offences or even offences that would not give rise to a criminal record. Even if that were true – and I suggest that there are compelling rejoinders to such assertions – that ‘fault’ does not arise from the offence at s 129 of the NDA.
I would suggest that inevitable post-conviction administrative action by CF statutory decision-makers may well influence the tolerances and thresholds that military prosecutors, and others, apply to such matters. For example, where a complainant or victim is markedly hesitant to testify or where there are frailties in a witness’ recollection of events, a military prosecutor may be quite willing to accept a guilty plea to a service offence such as disgraceful conduct under s 93 of the NDA, in order to ensure a conviction. And the complainant or victim may well be willing to accept such an outcome as well.
In the example that I offer, while the offender – because the accused is highly unlikely to receive an absolute discharge – will likely avoid a ‘SOIRA order’ and ‘DNA order’, he or she will be convicted and will be subject to a criminal record. Moreover, the military prosecutor and victim will know, with near certainty, that the offender will be released from the CF under item 2(a) to the Table to art 15.01 of the QR&O, which, in addition to terminating the offender’s service with the CF, may have an impact on when he or she will receive an annuity under the Canadian Forces Superannuation Act.[3] And it will likely bar the offender from seeking employment with the Federal Public Administration (so, no opportunity for ArriveScam-like employment or contracts).
Again, all of those factors arise from the nature of plea resolution under the military justice system. And the principal difference between the civilian criminal justice system and the military justice system that influences such negotiations has little to do with offences like s 129 of the NDA. As I have indicated previously, likely the single biggest factor that influences such negotiations is that the accused under the Code of Service Discipline will not be impaired in her or his defence due to the high cost of retaining counsel.
I suggest that one of the biggest factors that results in a difference between the ‘conviction rates’ in military justice compared to the civilian criminal justice process, is that an accused, regardless of rank and income, will benefit from the robust and capable advocacy from Defence Counsel Services free of charge. And when matters are referred to the civilian criminal justice system, as is increasingly, and arbitrarily, the case for allegations of sexual misconduct, the accused loses this benefit. And I cannot help but think this that this is part of the overall strategy.
But there are issues with the MJUL …
Notwithstanding the foregoing, I am not suggesting that there are not issues with the new “military justice at the unit level” or MJUL. What I am saying is that Mr. Dunne’s concerns are misplaced if his focus is on the service offence at s 129 of the NDA. And that is due, in large part, to the fact that, from 20 June 2022, service offences have nothing to do with the MJUL.
There is still scope for so-called ‘kangaroo courts’ in summary hearings. The accused no longer has the right to elect trial before a court martial. There is no provision for counsel to represent the accused. Although the OCSH may permit counsel to appear, I suspect such circumstances will be extremely rare, if not non-existent. The Office of the JAG (OJAG) likes to characterize summary hearings as a professional regulatory process; however, most professional regulatory processes with which I am familiar not only permit counsel to appear, but such appearances are also de rigueur. In contrast, whenever my clients have asked for me to attend their summary trial or hearing, the presiding officer or OCSH has refused to permit me to attend. It’s almost as if they are afraid that the law might seep into the proceeding.
And OCSH will not benefit from judicial scrutiny of service infractions. Prior to the bifurcation of the Code of Service Discipline, judgments at court martial and by the CMAC helped define the parameters of service offences, including, but not limited to, s 129 of the NDA. This helped provide for greater certainty of the prosecution of the same service offences at summary trial. It helped check what could otherwise be a tendency for arbitrary decision-making by presiding officers.
With the bifurcation of the Code of Service Discipline, this greater certainty will disappear. There will be little, if any, judicial scrutiny to help define the parameters of service infractions. And, while some service infractions are relatively clear, some, such as para 120.03(i) – “… otherwise behaves in a manner that adversely affects the discipline, efficiency or morale of the Canadian Forces …” – are susceptible to interpretation as “… you did something that I, as the CO, don’t like …”. Sure, the CO as OCSH likely won’t characterize his or her conclusion in precisely that manner, but that’s the general gist of this “catch all” provision.
Moreover, even though the punishments at summary hearings are now called ‘sanctions’ they are essentially identical to most of the punishments that were typically available at summary trials. Some, such as “reduction in rank”, share identical nomenclature with the punishment that remains available for service offences. And, while an OCSH cannot sentence a person to detention upon a finding of guilt, the OCSH can still deprive a CF member of liberty by ‘sentencing’ a person found guilty of a service infraction to confinement to ship/barracks for up to 14 days. And I remind readers that OCSH are not remotely independent actors, have little legal training (the online course that OCSH complete is hardly a safeguard for fairness and reasonableness), determinations are made on a balance of probabilities, and the accused has no right to elect trial by court martial. That looks a great deal like deprivation of liberty in a manner inconsistent with principles of fundamental justice and inconsistent with s 7 of the Charter. And the fact that the OCSH takes an oath to be fair is not much of a reassurance.
One of the few ‘improvements’ that was added to the summary justice system was that an OCSH must provide written reasons within three days of the finding and sanction imposed at the summary hearing. However, I suggest that the principal purpose of such written reasons is so that, when the decisions are eventually subject to judicial review, Department of Justice litigators can point to the requirement and ague: “See, it’s fair, because the OCSH must provide written reasons.”
However, in my experience over the past 20 months, the quality of such written reasons varies from competent to laughably ridiculous. By way of example, I recently reviewed written reasons from a colonel that were markedly insufficient. They were comprised principally of jingoistic statements conveyed in handwritten bullet points. They were devoid of analysis both in terms of finding of guilt and in determination of sanction. Moreover, the sanction imposed was “reduction in rank”, the most severe sanction available under the MJUL. There was no explanation why any lesser sanction was insufficient to meet the needs of discipline, efficiency, and morale or to serve the interests of justice. All that was offered was a series of conclusory statements about the importance of leadership and the combat effectiveness of His Majesty’s forces. It was wonderfully inspiring stuff. Unfortunately, it was devoid of analysis and failed to identify any principles or objectives of sanctions or provide an explanation why those principles supported recourse to the most severe, and life altering, sanction available. And, even after receiving a “mulligan” through the legislated review process, the OCSH still couldn’t articulate why he had no choice to use the most severe sanction available to him.
So, the requirement of written reasons might not be the bright, shining beacon of justice, fairness, and reasonableness that some people may suggest.
There is a lot that is wrong with the ‘new’ “Military Justice at the Unit Level” (MJUL), but the service offence described at s 129 of the NDA – which cannot be prosecuted under the MJUL – is not part of that problem. Nor is it problematic as a service offence prosecuted by court martial. What I do contend we will see in the coming months is a continued reduction in the number of charges laid under s 129 of the NDA, compared to the years immediately preceding the bifurcation of the Code of Service Discipline in 2022. Instead, we will see an increased reliance on the prosecution of service infractions before summary hearings, with the ambiguity and arbitrariness that this process entails.
And that’s the issue about which we really should worry.
[1] In fact, coincidentally, relatively early in my career, I sat second chair to J-B Cloutier in the prosecution of a CF member charged with both drunkenness (NDA, s 97) and conduct to the prejudice of good order and discipline (NDA, s 129), and the defence counsel was Edmund Thomas.
[2] Elaine Craig, “An Examination of How the Canadian Military’s Legal System Responds to Sexual Assault” (2020) 43:1 Dal LJ 63.
[3] Conviction for one or more service offences will not disentitle a CF member to their annuity under the Canadian Forces Superannuation Act (CFSA). The CFSA was amended in 2007 to remove any capacity for the Treasury Board to disenfranchise a ‘contributor’. And, even before that amendment, such disenfranchisement was not mandatory and was limited to a very narrow range of offences, all of which related, in some way, to defrauding the Crown. For example, a CF member who was a contributor under the CFSA would not be disenfranchised is convicted of murder or sexual assault. However, if a CF member is released from the CF under ‘items’ 1, 2, or 5 of the Table to art 15.01 of the QR&O before the CF member would otherwise be entitled to an immediate and unreduced annuity, the CF member will not become eligible for any annuity under the CFSA until the CF member meets a separate relevant threshold for an annuity (such as age).
