Criminal Law Case
Some Observations on ‘Military Justice’ at Summary Trial – Part III
June 8, 2022
The Arbour Report – Initial Observations  
June 22, 2022

Some Observations on ‘Military Justice’ at Summary Trial – Conclusion

 

The previous three Blog posts offered observations on select jurisdictional issues relating to the administration of the Code of Service Discipline at the summary trial level – at least, how it is currently configured.  Specifically, these posts discussed some problematic decisions that have been, or could be, made regarding jurisdiction under the Code of Service Discipline in which a Canadian Forces (CF) member accused of one or more Code of Service Discipline offences might be denied the right to elect trial by court martial.  In other words, the accused would be deprived of an opportunity to have the allegations determined before an independent and impartial decision-maker, learned in the law.

In Part I, I discussed what appears to be a prevailing, erroneous, and unreasonable interpretation of sub-art 108.17(1) of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) pertaining to charges laid under section 129 of the National Defence Act (NDA).  Specifically, I contend that presiding officers (i.e., officers exercising jurisdiction at summary trial), have applied an over-broad interpretation to the phrase ‘dress and deportment’ under para 108.17(1)(a) of the QR&O, in relation to charges under section 129 of the NDA.  By virtue of this erroneous interpretation, it appears that officers exercising summary trial jurisdiction have been improperly and unreasonably withholding the right to elect trial by court martial from members of the CF who have been charged under section 129 of the NDA.  And they appear to have been doing so based upon advice from the Office of the JAG (OJAG)

In Part II, I examined the conflict of interest that can arise when a legal officer from the OJAG is charged under the Code of Service Discipline – specifically, under section 129 of the NDA – and an officer exercising summary trial jurisdiction unreasonably and incorrectly withholds the right to elect trial by court martial.  Although it is relatively rare for a legal officer to be charged under the Code of Service Discipline, the principal purpose of the example offered in Part II of this series was to highlight the nature and impact of the specific role of the OJAG in ensuring fairness and compliance with the rule of law under the Code of Service Discipline.  And that post also suggested how confidence in the administration of the Code of Service Discipline could deteriorate when legal advisors from the OJAG fail to ensure compliance with the rule of law.

In Part III, I provided detailed analysis of the mischief that could potentially arise (and has likely arisen) when Director of Military Prosecutions (DMP) exercises his discretion under section 165.13 of the NDA to refer matters back to an officer who may exercise jurisdiction at the summary trial level, notwithstanding that a matter was referred for court martial.  In particular, I identified circumstances in which DMP could disingenuously deprive an accused of the right to trial before a court martial even though an accused elected trial by court martial.  To my knowledge, the discretion at section 165.13 of the NDA has not been exercised often – but it has been exercised.  And, troublingly, when that power has been exercised, it has not been the subject of judicial or public scrutiny.

 

So why is this important?

In light of the forthcoming significant changes to the Code of Service Discipline that will be introduced with the new ‘Military Justice at the Unit Level’ (MJUL), it is entirely possible that some of you may be wondering: “Why spend so much effort on that analysis if the right to elect trial by court martial will become moot upon the introduction of the MJUL?”

That’s a valid question.  Superior commanders and commanding officers must complete the online training for the new MJUL prior to 20 June 2022.   Delegated officers must complete this training before performing duties under the amended Code of Service Discipline.  And the new MJUL will render most of my commentary in Parts I, II, and III of this Blog series moot.

The new MJUL will introduce ‘infractions’ mirroring not only the Code of Service Discipline offences listed under art 108.17 of the QR&O, but also offences that, at present, will always give rise to an election for court martial.  Once the MJUL comes into force, an accused’s right to elect trial by court martial won’t be an issue – because that right will disappear.

As I have discussed previously, two of the most significant characteristics of the new MJUL are:

  1. The accused will not have a right to elect trial before a court martial; and
  2. The burden of proof will be reduced from ‘beyond a reasonable doubt’ to a ‘balance of probabilities’.

 

In other words, the new MJUL is designed to make it easier to find a CF member guilty of an alleged service infraction.  There will be no need to worry about an independent and impartial military judge insisting that the law must be applied correctly or that evidence must prove guilt beyond a reasonable doubt.

This MJUL ‘placemat’ offers a summary of many of the changes that are forthcoming:

Victims' Rights and Summary Hearings 'Placemat'

And not all of those changes are reassuring.

There will be changes in terminology.  Instead of an ‘accused’, it will be a ‘person charged’.  Instead of an ‘offence’ it will be an ‘infraction’.  Instead of a ‘presiding officer’, it will be an ‘Officer Conducting a Summary Hearing’.  Instead of a finding of guilt (or, rarely, not guilty), it will be ‘found (not found) to have committed a service infraction’.  Instead of ‘punishment’, it will be a ‘sanction’.

Additionally, commentary on the new MJUL has consistently asserted that it is ‘non-criminal’ and ‘non-penal’.  In other words, the clear intent is to signal that section 11 of the Canadian Charter of Rights and Freedoms – particularly para 11(d) – does not apply.  No need for an independent and impartial tribunal here.  These are most definitely not the droids you are looking for.

But let’s not kid ourselves – a punitive regime is a punitive regime.  Changing terminology does not hide the fact that it will become markedly easier to establish guilt and punish alleged offenders.  And, once the ‘offenders’ are punished under the new MJUL, then additional administrative measures, up to and includi9ng compulsory release, can be imposed – all without having to worry about those pesky independent and impartial military judges insisting upon a correct application of the law and sufficiency of evidence.

And whether the regime impacts Charter rights – like the right under section 7 of the Charter: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” – has yet to be established.

You will note, Dear Reader, that the ‘minor punishments’ under the existing version of the Code of Service Discipline simply get converted into ‘sanctions’ under the new MJUL.  Notably, ‘reduction in rank’, which would give rise to an election for court martial under the current version of the Code of Service Discipline, even if it is used to punish one of the ‘baby five’ offences listed under art 108.17 of the QR&O, will now be used under the MJUL without any recourse such an election.  Stop and consider the impact of such punishment – sorry, sanction – when imposed without recourse to significant safeguards for fairness.

And we will see what becomes of ‘confinement to barracks/ship’.  There are compelling arguments that, in the 21st Century in which we live, this punishment – which has marked similarities to a ‘conditional sentence’ under the Criminal Code (known colloquially as house arrest, and which, as a ‘custodial sentence’, most certainly attracts scrutiny under section 7 of the Charter) – represents a deprivation of liberty without a sufficiently fair, impartial, and independent process.

 

Don’t worry, this is just a professional regulatory regime …

The Office of the JAG has consistently sought to characterize the new MJUL as being similar to a ‘professional regulatory regime’.

I have difficulty agreeing with such a proposition.  That’s my polite way of saying: “What utter hogwash.”

First, the anticipated powers of punishment – sorry, sanctions – far exceed what professional regulatory regimes impose.  Most professional regulators (Law Societies, Colleges of Surgeons, etc.) are limited to corrective measures that relate directly to the governance of the profession.  Their powers typically extend to (and are limited to): (1) revoking a license (or equivalent standing); (2) suspending a license; (3) directing supervision of the licensee by another, more experienced, licensee; and, (4) fines (and/or costs relating to the process).

By way of example, my Law Society cannot reduce my rank or impose what is, in effect, a custodial sentence.

In fact, one of the most significant distinguishing features is that my Law Society is not my employer.  It is my professional regulator.  And I get to vote directly for my peers who will occupy decision-making positions in the governance of my profession.

Nice try OJAG – but, regardless of the rebranding, the MJUL is not akin to a professional regulatory regime.  It is what it has always been: a coercive and punitive disciplinary regime that far exceeds not only the scope of powers of professional regulators but even potential comparator regimes like the governance of police officers under provincial legislations like the Police Services Act, RSO 1990, c P-15.  [And, as an aside, while the burden of proof for the disciplinary regime under the Police Services Act is lower than the ‘criminal’ burden of proof, it exceeds the civil standard of ‘balance of probabilities’.]

The principal distinction is that, now, we have regressed back to a mechanism that lacks independence and impartiality, or, arguably, sufficient safeguards for fairness and assurances that the law will be applied correctly and reasonably.

So, why did I spend the last couple of weeks discussing aspects of the Code of Service Discipline that will become moot in a week’s time?

I did so because it is indicative of what we can anticipate with the new MJUL.  I did so because, in that analysis, there were indicators of ethical concerns in the application of disciplinary regimes.

 

Fairness and Ethics

The saving grace of ‘military justice as the summary trial level’ – at least as it is presently configured – is principally that, if an accused is concerned that she or he would not get a fair hearing at summary trial, she or he could elect trial before a constitutionally independent and impartial military judge.  Don’t just take my word for it; consider what Brigadier-General Ken Watkin (retired), a former Judge Advocate General of the Canadian Forces, told the Standing Committee on National Defence back in June 2008 when he was still JAG:

The court martial serves another essential function in our system of justice. For most service offences, the accused must be offered an election to be tried by court martial. This crucial safeguard for the accused’s rights permits a service member to choose a trial presided over by a military judge and to be represented by fully qualified lawyers. At the same time, if a commander commences a summary trial and subsequently determines the matter should be sent to court martial, he or she can do so. The option of proceeding to court martial therefore provides an essential mechanism to ensure fairness to the accused, and it protects the broader interests of the military in Canadian society.

 

That option will now be gone for a great many allegations.  And that is by design.

Granted, there are likely many current and former CF personnel – often fairly senior personnel – who felt frustrated by an accused’s right to elect trial by court martial.  I suspect than many saw it as a tactic by the accused to delay – or, potentially, avoid – an inevitable finding of guilt.  I suspect that many perceived that the accused should just (to use a gender-specific term, that is nevertheless often used within the military context) ‘man up’ and accept the punishment.  I suspect that many of those people felt that the Code of Service Discipline at the summary trial level was sufficiently fair and that all of this reliance on courts martial was something foisted on them by military lawyers.

Or, at least, I suspect that many of them held that view, right up until that same person was accused of a Code of Service Discipline offence him- or herself.  Then, often without exception, their perspective changes markedly.

Trial before an independent and impartial military judge who is actually schooled in the law can be a great leveller.  Remember: “… a person who joins the Forces enters into a unilateral commitment in return for which the Queen assumes no obligations, and that relations between the Queen and Her military personnel, as such, in no way give rise to a remedy in the civil Courts.”[1]

That is a markedly asymmetric relationship, and it is one that can be abused by CF statutory decision-makers where there are inadequate checks on the exercise of their broad powers.  Unfettered power can give rise to impunity.

The right to elect trial before an independent and impartial military judge is not the sole safeguard to fairness under the Code of Service Discipline.  But it is the most compelling.

Some may be quick to point out that, under the new MJUL, legal advice will be mandatory at the following stages of the process:

  1. Pre-investigation (in many, but not all, cases);
  2. Pre-charge; and
  3. Pre-trial.

 

And the use of the term ‘pre-trial’ in the above list is not my invention – it is used in the aforementioned ‘placemat’ developed by the OJAG.  Arguably, it would be more in keeping with the new ‘sanitized language’ of the MJUL to refer to ‘pre-hearing’ advice.

So, the accused – again, sorry, the ‘person charged’ – need not worry about any deficiency in fairness in the summary hearing process, because the people laying the charges and conducting the summary hearings are obliged to obtain legal advice (much as they are at present).

Would these be the same legal advisors who have recently been advising presiding officers that they can apply an unreasonably overbroad interpretation of art 108.17 of the QR&O regarding when the right to elect trial by court martial might be withheld from an accused?

One wonders why, suddenly, there appears to have been an apparent shift in the interpretation of art 108.17 of the QR&O.  Is it because CF decision-makers and their legal advisors are becoming increasingly impatient for the introduction of the MJUL, and the removal of that annoyingly inconvenient election for court martial?  And, while it may be cynical of me to suggest this, is it because there is a perceive diminishing risk arising from such misinterpretation of the provision?

After all, most accused who are denied the right to elect trial by court martial likely won’t have the knowledge and wherewithal to present a compelling argument regarding the interpretation of art 108.17 of the QR&O.  Consequently, they might not present a sufficiently robust argument before both the presiding officer and the review authority under art 108.45 of the QR&O.  And, if the accused plans on seeking judicial review before the Federal Court, such a robust argument would be necessary at those stages: judicial review is not an opportunity to present a de novo argument; it is generally limited to a review of the impugned statutory decision-making.  Plus, the accused would likely have to be motivated and willing to spend a few thousands of dollars retaining counsel to bring the application for judicial review.  A cynical CF decision-maker (or a cynical legal advisor to the decision-maker) may view the likelihood of a successful judicial review to be relatively low.

And, even if such a judicial review were successful, what’s the worst outcome?  The specific, impugned Code of Service Discipline proceeding would be quashed – but only after several months and a significant expenditure by the accused.  And, since the new MJUL will come into force on 20 June 2022, there is no long-term risk for the CF or the OJAG arising from an interpretation of art 108.17 of the QR&O by the Federal Court that is contrary to the erroneous interpretation currently being advanced by the OJAG and CF decision-makers.  As of 20 June 2022, that interpretation would be moot.

One wonders if that sort of ‘risk calculation’ has been pursued by relevant decision-makers and their legal advisors.  And I hasten to add that I would not characterize this as ‘legal risk’.  The Department of justice defines ‘legal risk management’ as “… the process of making and carrying out decisions that reduce the frequency and severity of legal problems that prejudice the government’s ability to meet its objectives successfully”.  I contend that, where the interpretation of a provision is so obviously incorrect, it constitutes ‘policy risk’.  The issue is not whether there is a possibility that the course of action may be incorrect at law; the issue is whether someone will have the wherewithal, motivation, and means to take the necessary steps to challenge that misinterpretation before a court of competent jurisdiction.

I note, tangentially, that a common ground for imposing remedial measures or more severe administrative outcomes (such as compulsory release) on CF personnel is contravention of Defence Ethics under Defence Administrative Order and Directive (DAOD) 7023-0 and the Defence Ethics Programme under DAOD 2073-1.  These policies implement and enforce the DND and CAF Code of Values and Ethics.  And when a CF member is alleged to have contravened these values and ethics, they can be subject to significant adverse administrative measures (which, frankly, often have the countenance of punishment, notwithstanding the insistence by CF decision-makers and their legal advisors that these merely represent ‘remedial action’).

The DND and CAF Code of Values and Ethics list three Ethical Principles that guide the DND and CAF, including:

  1. Obey and support lawful authority

At all times and in all places, DND employees and CF members shall uphold Canada’s parliamentary democracy and its institutions by:

3.1 Respecting the rule of law.
3.2 Carrying out their duty and their duties in accordance with legislation, policies and directives in a non-partisan and objective manner.

 

I wonder how the unreasonable and overbroad application of art 108.17 of the QR&O factors into that ethical principle?  I suppose the relevant decision-makers would be quick to assert: “It’s OK, my legal advisor said that I could.”

 

How much of a safeguard is the requirement for legal advice?

As I explained in Part I and Part II of this Blog series, the OJAG and the legal officers who comprise the OJAG are independent (or, at least, arm’s length) from the CF chain of command.  That does confer upon those legal officers a degree of limited independence and, one might presume, concordant impartiality.

However, that limited independence is not proof against capture by the interests of the chain of command.  I have noted over the past few years an increasing tendency by the OJAG, generally, to demonstrate a sentiment that may be characterized as ‘going along to get along’.

That doesn’t mean that I believe that the legal officers who comprise the OJAG are a craven and unethical lot.  But I would have misgivings regarding a suggestion that the requirement for legal advice from what is essentially ‘in house counsel’, and whose values include “… alignment with clients’ objectives and priorities …”, is a sufficient safeguard for fairness of an adjudicative process.

[NB: The statutory ‘clients’ of the OJAG are: the Governor General, the Minister of National Defence, the Canadian Forces, and the Department of National Defence.[2]  This is incorporated into the statement of JAG Priorities in the following way: “The Office of the JAG will serve the Government of Canada, the Department of National Defence and the Canadian Armed Forces, whether in Canada or abroad.”]

Let’s return to the example I provided in Part I of this Blog series.  A CF member is charged under the Code of Service Discipline (as it currently exists) with an offence under section 129 of the NDA.  The right to elect trial by court martial is (improperly) withheld by the officer exercising summary trial jurisdiction notwithstanding that the accused expressly requested such an opportunity.

Consequently, the accused may have misgivings about the fairness of the process.  The accused may wish to be represented by legal counsel in that process.  While there is not an absolute right for an accused to be represented by counsel, neither is it absolutely prohibited.  An accused may request that privilege.  [See the Notes to art 108.14 of the QR&O.]

The decision lies within the absolute jurisdiction of the officer exercising summary trial jurisdiction.  To be clear: this is the same officer who withheld the right to elect trial by court martial, where the accused would be entitled to representation by counsel (and free of charge).

Let me ask you this, Dear Reader: when have any of you ever experienced a circumstance in which a presiding officer at summary trial permitted counsel to appear on behalf of the accused?  When was the last time a unit legal advisor suggested to a presiding officer that she or he could or should permit such appearance?

Yeah – that’s what I thought.

Oh, and as an aside, in the professional regulatory regimes to which the OJAG likes to compare the MJUL, the licensees who are brought before regulatory professional discipline tribunals (which generally have less robust powers of sanction than the summary hearings under the MJUL) will generally have a right of representation by legal counsel.  And that counsel is typically funded by the licensee’s insurer.  And those professional disciplinary tribunals also have greater hallmarks of independence and impartiality than the average presiding officer or ‘officer conducting a summary hearing’.

Make no mistake – the unit legal advisor is there to ensure the broadest exercise of discretion by the officer conducting the summary hearing.  However, that exercise of discretion must still be consistent with the relevant law.  And, as I observed in Part I of this Blog series, I am not confident that this remains the case in terms of refusals to permit an accused election for court martial.  The failure of presiding officers to apply art 108.17 of the QR&O correctly does not instil me with confidence that they will also apply the law correctly under the MJUL.

Moreover, in my experience dealing with CF statutory decision-makers who apply the ‘civil burden of proof’ (i.e., ‘balance of probabilities’) in administrative decision-making (e.g., under DAOD 5019-4, Administrative Review), the decision-makers often confuse the application of the civil burden of proof to evidence with the correct interpretation of the relevant law.  More than once, I have encountered a CF statutory decision-maker who proclaims that he or she has applied the law on a ‘balance of probabilities’.  That’s not how an evidentiary burden of proof functions.  Similarly, I have encountered CF decision-makers who, absent actual evidence (e.g., statements from witnesses, documentary or physical evidence), have relied upon conclusory hearsay in order to make a determination based upon a ‘balance of probabilities’.  I am not confident that many of these decision-makers understand that a ‘balance of probabilities’ is not simply ‘code’ for “… do whatever you want to do …”.

 

Misapplication of Law can give rise to Ethical Issues

The preceding three-part Blog series discussed discrete legal issues arising under the Code of Service Discipline and which pertained to circumstances in which an accused might be precluded from benefitting from a trial before an independent and impartial military judge.  However, the purpose of that discussion was not solely to introduce and discuss those discrete legal issues.  It was also intended to signal some of the ethical concerns arising from those legal issues.

As I mentioned in Part I, there can arise an interesting dichotomy between a CF decision-maker and his or her legal advisor.  When the legal advice is consistent with the decision-maker’s desired or intended course of action, the decision-maker will often tend to buttress or justify his or her decision with said legal advice: “My legal advisor said I could do this…”

When the legal advice is inconsistent with the decision-maker’s intended course of action, some decision-makers may be quick to assert, “Yes, but that’s just your opinion (or advice).  I am the decision-maker …”

If the OJAG adopts a vision that it must be seen as an ‘enabler’ for the chain of command, or that it must remain ‘relevant’, there is a risk of capture by decision-makers who may be inclined to test the limits of the law beyond that which is permitted or reasonable.  And when there are insufficient safeguards – such as scrutiny by independent and impartial judges – often one of the few factors that can prevent such statutory decision-makers from exceeding their jurisdiction or venturing into unreasonable ‘territory’ is a legal officer who is willing and able to intervene.  If that legal advisor – or the OJAG generally – has been captured by the statutory decision-maker, the merit of such a safeguard is diminished.

There is a risk that adherence to key principles enabling the rule of law will deteriorate in the pursuit of that ‘relevance’ in the eyes of the chain of command.  After all, if the legal advisors in the OJAG are perceived by senior CF decision-makers as obstacles to the desired end-state – the dreaded ‘Doctor No’ syndrome in which the legal advisor is perceived as saying ‘no’ too frequently – then it may be difficult to achieve or maintain that ‘relevance’.  If unit legal advisors are perceived as not being ‘on side’ with the intended outcome, the relationship with the chain of command could deteriorate.

 

So where does that leave the ‘person charged’?

The suggestion that legal advice alone is a sufficient safeguard of fairness represents misplaced confidence in the merit of that arrangement.  The surest safeguard is contemporaneous scrutiny by an independent and impartial adjudicator – i.e. a judge.  That won’t be possible with the new MJUL.

Therefore, CF personnel who are subjected to unfair or unreasonable decision-making under the MJUL will have to turn to the same methodology used when they are subjected to unfair and unreasonable decision-making under the NDA outside of the Code of Service Discipline: judicial review before the Federal Court.  That particular step evidently does not warrant mention on the OJAG’s “Victims’ Rights and Summary Hearings Placemat”.

Of course, the CF members affected by such decisions will first have to exhaust the review process under the MJUL.  The decision-maker in that review process will be no more independent and impartial than the officer conducting the summary hearing.  And, although the legal advisor for the review will, presumably, be a different legal advisor than the one who advised the officer conducting the summary hearing, both will be drawn from the OJAG.

And consider this: one of the initial objections to the MJUL could well focus on whether the use of the punishment – sorry, sanction – of ‘confinement to barracks/ship’ contravenes section 7 of the Charter.  After all, that sanction (see, I’m learning) can be imposed by a decision-maker who is neither sufficiently independent nor impartial.  There is an argument that a CF member’s liberty is deprived in a manner inconsistent with the ‘principles of fundamental justice’.

It could seem to be a pointless endeavour to raise that argument at summary hearing, or in a subsequent review.  After all, the ‘Officer Conducting a Summary Hearing’ will undoubtedly conclude: “… that power is conferred under the National Defence Act [well, technically, under the QR&O] and there is a presumption of constitutionality for such legislation …”.  I am confident that the legal advisors to the ‘Officer Conducting the Summary Hearing’ and the review authority will incorporate that principle into their advice.

It is dubious that the statutory decision-makers under the MJUL will be competent to consider a ‘Notice of Constitutional Question’.  Even if they purported to do so, it is highly unlikely that a senior officer in the CF would conclude that such powers of punishment would be unavailable to her or him.

However, if the ‘person charged’ wished to raise the issue on an application for judicial review before the Federal Court (following the review under the Code of Service Discipline), that CF member would be obliged to raise the issue both at the summary hearing and on review.

While the introduction of the MJUL in a week may render moot the issue of ‘election for court martial’, the ethical issues arising from the fair, reasonable, and (where necessary) correct application of that punitive regime will remain for the relevant CF statutory decision-makers and their legal advisors.  Indeed, in the absence of contemporaneous scrutiny of that regime by independent and impartial judges, those ethical issues will intensify.

 

[1] Gallant v The Queen in Right of Canada (1978), 91 DLR (3d) 695, 696. CanLII 2084 (FC)

[2] National Defence Act, RSC 1985, c N-5, s 9.1.

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2 Comments

  1. Bob says:

    Thank you for this, you seem to be the only watchdog looking out for the welfare of the troops.

  2. Bernadette says:

    The MJUL DLN course is an Orwellian experience, to say the least.

    A “fine” (punishment) becomes a “deprivation of pay” (sanction), yet terms of “payment” may be altered if the sanctioned person (?) is experiencing financial difficulties.

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