This past Monday, 21 September 2020, marks six months since the former Chief Military Judge, Colonel Mario Dutil, was obliged to retire when he reached 60 years of age, the ‘compulsory retirement age’ (CRA) for members of the Canadian Forces – even military judges.

Since that time, the Deputy Chief Military Judge, Lieutenant-Colonel Louis-Vincent d’Auteuil, has been the de jure Acting Chief Military Judge by virtue of section 165.29 of the National Defence Act.  That role was not ‘new’ to Lieutenant-Colonel d’Auteuil; he had filled it for the better part of two years while Director of Military Prosecutions (DMP) attempted, unsuccessfully, to prosecute the former Chief Military Judge, including an unsuccessful application for judicial review when the Deputy Chief Military Judge declined, for compelling reasons, to assign a military judge to preside over that problematic court martial.

Thus, we have been waiting for six months for the Governor-in-Council to appoint a new Chief Military Judge.  And like a juridical remake of Casablanca, we wait, and wait, and wait …

Four months later, the Chief of the Defence Staff (CDS), General Jonathan Vance, announced his intention to retire, once the Governor in Council named his successor.  We’re also waiting for that announcement – but we have not been waiting as long as we have for the appointment of a new Chief Military Judge.  There was speculation that the CDS’ successor might be announced before the Throne Speech of 23 September 2020; however, that did not happen.

During the past six months, the Governor in Council has not been inactive.  They have appointed several Superior Court and even Federal Court judges.  They have enacted regulations, including regulations that will deprive thousands of Canadians of lawfully obtained property.  The government found the time to prorogue Parliament in order to deliver a Speech from the Throne that, frankly, was a little lacklustre and vague about specifics, even when measured against past Speeches from the Throne.

Here is my concern: What does this ongoing delay in the appointment of a new Chief Military Judge say about the current government’s commitment to the Rule of Law in the administration of military justice?

We are witnessing an escalating battle of wills between the military judiciary and the CDS (and, possibly, the JAG).  A week ago, in R v Captain Iredale, 2020 CM 4001 [Iredale], military judge Commander Pelletier, ordered a stay of prosecution for, essentially, the same reasons that Lieutenant-Colonel d’Auteuil stayed the prosecutions in R v Leading Seaman Edwards, 2020 CM 3006 [Edwards], R c Captain Crépeau, 2020 CM 3007, [Crépeau] and R c Artilleur Fontaine, 2020 CM 3008.  In all of these courts martial, the accused challenged the independence of the military judge presiding over the court martial in light of the existing CDS order that places military judges under the disciplinary jurisdiction of the Deputy Vice Chief of the Defence Staff.  The accused argued, successfully, that this lack of independence contravened their right, pursuant to section 11(d) of the Canadian Charter of Rights and Freedoms [Charter], to a trial before an independent tribunal.  (On a tangential note: what is interesting about the recent stay in Iredale, is that, on 16 July 2020, the same military judge summarily dismissed an earlier application by the accused seeking a stay of prosecution, albeit based upon a different Charter issue).

The CDS has, apparently, steadfastly refused to rescind the impugned order.  This has led military judges to stay prosecutions before courts martial, including where serious criminal offences have been alleged.

I note, tangentially, that a similar application was not brought in the recent court martial R v Private Coulter, which was heard before military judge Commander Deschênes.  The judgment in that matter is not yet publicly available; however, it appears that a Charter application was not brought in that matter.  Moreover, it is worth noting that, prior to her appointment to the military bench, Commander Deschênes was the legal advisor to the Office of the CDS, and may well have been involved in the drafting of the current, or prior, CDS orders relating to disciplinary jurisdiction over military judges.  While I do not comment on whether this must necessarily preclude Commander Deschênes from presiding over any such Charter applications, I do suggest that it would not be surprising if an accused raised that factor in any such application, if Commander Deschênes were assigned as the presiding military judge.  If, as appears to be the case, further Charter applications will be raised for as long as the impugned CDS order persists, this could limit the courts martial over which Commander Deschênes may reasonably be expected to preside.  And this circumstance may persist until the CMAC is in a position to hand down a judgment in the Minister’s appeals of the judgments in Edwards and Crépeau.

I have suggested in this Blog, and in the Global Military Justice Reform Blog, that the logical course of action for the CDS and JAG would be for the CDS to rescind the impugned order until the Court Martial Appeal Court of Canada (CMAC) can rule on this issue.  The CMAC judgement in the upcoming appeals in Edwards and Crépeau would, I suggest, definitively conclude the issue (barring subsequent appeal to the Supreme Court of Canada).

The CMAC will either conclude that the CDS order infringes section 11(d) of the Charter or it doesn’t.  If the CMAC concludes that the order does not contravene s 11(d) of the Charter, then there is no Charter infringement to justify a stay.  The CDS can then reinstate his order.  If the CMAC concludes that the CDS order does contravene the Charter, the Court will likely declare it of no force or effect. Unlike a judgment and declaration of a court martial, which applies only to the matter before the court martial, a declaration of the CMAC will have broad and general application.  In other words, if the CDS continues to refuse to rescind his problematic order, and the CMAC concludes that it contravenes the Charter, the CMAC will, in effect, rescind the CDS’ order for him.

But the CDS can avoid what appears will be a series of stayed prosecutions if he rescinds his order, even if only ‘temporarily’ (similar to how some commanding officers have been ‘temporarily’ removed from command – albeit, in some cases, for periods of 12 months or more …).  However, in the weeks since military judge Commander Sukstorf handed down her judgment in R v Bouque, 2020 CM 2008, there has been a palpable reluctance by the CDS to rescind his impugned order.  Whether this is due to stubbornness on his part, or advice from the JAG, is not (and likely never will be) clear.  What is clear is that this impasse will likely remain.

And, frankly, I suggest that it is bringing the administration of military justice into disrepute.

It is quite possible that the JAG, DMP and the Deputy Judge Advocate General – Military Justice (DJAG MJ) all believe that the military judges are incorrect in their conclusion that the impugned CDS order undermines judicial independence.  It is quite possible that all three legal officers believe that the CMAC will overturn those judgments.  That was likely not a ‘hard sell’ to the CDS, if he is even inclined to care much about that outcome.

However, I suggest that, for the moment, this approach is damaging what respect might persist within the military community regarding the Code of Service Discipline.  And this harm is unnecessary.  Were the CDS to rescind his order, if only temporarily, the appeals in Edwards and Crépeau would continue.  There will eventually be a definitive judgment from the CMAC.  There may, or may not, be grounds for further appeal to the Supreme Court of Canada.  At the very least, there would be a binding judgment in the interim.  However, by rescinding the order, the CDS would permit courts martial to proceed.

What’s more, no one even needs to ‘admit’ that he or she was wrong.  The JAG need not ‘admit’ that the advice given to the CDS was incorrect or flawed.  The CDS need not ‘admit’ that his order was invalid.  They can simply assert that the impugned order is being withdrawn pending a definitive judgment from the CMAC.

For those who are more inclined to view military matters through a ‘tactical’, rather than legal, lens, think of it as a ‘delaying action’.  The CDS and JAG would not be surrendering; they would simply be sacrificing terrain, temporarily, in order to gain time for the CMAC appeal to run its course.

Clearly, this impasse is being driven, at least in part (and I would suggest a large part), by ego on the part of all the decision-makers involved.  The military judges are likely still offended by the failed prosecution of their former Chief, and what that meant for judicial independence.  The JAG is likely reluctant to ‘admit’ that her office may have erred in advising the CDS to issue the order (which is merely the most recent of a series of similar orders, which have been issued over a number of years).  And the CDS is not someone who likes to back down from a challenge to his authority.  I suspect that any discussion of this issue between the JAG (or one of her representatives) and the CDS would be marred by rejoinder from the CDS that he was following the JAG’s advice when issuing the order.

No senior lawyer likes to admit that she or he may have erred in the law.  No General or Flag Officer is inclined to tolerate a challenge to his or her authority.  But, frankly, an immediate remedy can stop short of such ego-bruising acknowledgements.  Rescinding the order until the CMAC rules on the upcoming appeals would permit everyone to retain their sense of self-worth, while permitting courts martial to proceed.

That would be the sensible course of action.

Which brings me back to the continuing vacancy for the position of Chief Military Judge.  Prime Minister Trudeau and Minister Sajjan: it’s not a difficult decision.  You essentially have a pool of no more than four candidates, and one of them has been doing the job for the better part of 2 1/2 years.  There is clearly no practical barrier arising from the present COVID-19 pandemic which would prevent the Governor in Council from making such an appointment.  The longer you take to appoint a Chief Military Judge, the more it can appear to undermine the military justice system.  And the military justice system is taking a beating right now.

Moreover, in light of the ongoing battle of wills, it could be interpreted as an indirect punishment of military judges for their failure to ‘tow the line’.   Certainly, if a successor for the CDS, who announced his retirement four months after the former Chief Military Judge was obliged to retire, is announced before a new Chief Military Judge is appointed, the Governor in Council risks sending a rather pointed, and improper, message to the military judiciary.  After all, the problematic prosecution of the former Chief Military Judge can reasonably been seen as the catalyst for the shift in the current perspective of military judges regarding their independence.

The time has come for action on the part of the Governor in Council, the CDS, and the JAG.  The time come for these constitutional and statutory actors to take appropriate steps to preserve confidence and respect for the military justice system.  Frankly, without meaningful and timely action to rectify these lacunae, the perception-driven issues of some of these actors won’t amount to a hill of beans.

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