Some Observations on ‘Military Justice’ at Summary Trial
At present, one of the legislative priorities for the Canadian Forces (CF), and, more specifically, the Office of the Judge Advocate General of the Canadian Forces (Office of the JAG or OJAG), is the implementation of Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, SC 2019, c 15 (Assented 21 June 2019). Although it was enacted almost 3 years ago, significant portions of that Act have not yet come into force and will only come into force upon enactment of implementing regulations. Much of the attention of this implementation is focused on the incorporation of provisions relating to the Canadian Victims Bill of Rights (from the Criminal Code, RSC 1985, c C-46) into the Code of Service Discipline.
However, the incorporation of provisions relating to the Canadian Victims Bill of Rights is not the only significant change that will be introduced under Bill C-77, and, arguably, it isn’t the most significant change for many CF personnel.
Another significant change to the Code of Service Discipline upon implementation of Bill C-77 will be the creation of ‘summary hearings’ which will, in effect, replace the existing summary trials. Much has been said by various governmental spokespersons about the shift from summary trials to summary hearings, and some of what has been said is disingenuous.
I commented on some of these disingenuous claims shortly before Bill C-77 received Royal Assent:
A few comments on Bill C-77 … (28 May 2019)
One of the factors that is regularly cited about the changes introduced by summary hearings is that they remove the criminal or penal consequences or aspects of summary trials. While that may be true, it tends to obfuscate other factors of significance relating both to the existing summary trials and the anticipated summary hearings.
First, most (but not all) summary trials – particularly those in which an accused is not offered an election for court martial – do not give rise to a criminal record by virtue of section 249.27 of the National Defence Act (NDA). As discussed in detail below, the limitations on the powers of punishment where a presiding officer does not offer an election for court martial, generally preclude convictions before such summary trials from giving rise to a criminal record. Where an election is offered to an accused, but the accused elects to proceed by summary trial, a resulting conviction could, potentially, trigger a criminal record.
However, if the desired policy and legislative intent was to preclude any criminal record arising from a summary trial, then section 249.27 of the NDA could have been enacted in a much simpler format – e.g. “A person who is convicted of one or more Code of Service Discipline offences before a summary trial has not been convicted of a criminal offence.” After all, summary justice is intended for less serious matters where the intent is to re-instill the ‘habit of obedience’, rather than criminal or penal punishment. If the chain of command believed that a matter required more serious consequences because of the gravity of a matter, it could refer the matter to prosecution before a court martial.
However, this simpler, straight-forward approach was not enshrined in s 249.27 of the NDA or in the Code of Service Discipline generally. So, presumably, the motivation behind the creation of summary hearings was not solely or principally to remove the penal or criminal nature from summary trials.
Second, what is not advertised in quite as robust a fashion is that a ‘prosecution’ before a summary hearing (although CF spokespersons avoid using the term ‘prosecution’ in conjunction with summary hearings) will not preclude subsequent prosecution before a court martial or a civil court of criminal jurisdiction. In other words, the principle of autrefois acquit/convict (what many may know by the term ‘double jeopardy’) will not apply to matters decided before summary hearings.
Instead, I suggest that the two significant – even defining – factors arising from the ‘coming into force’ of the provisions pertaining to summary hearings are:
As I have stated previously, there is a rather clear intention signalled by the creation of summary hearings: the goal is to make it easier to convict CF personnel of these minor offences (or ‘infractions’).
Of course, the new summary hearing regime won’t use terms like ‘convict’, or ‘offence’, or ‘guilt’ – but let’s not kid ourselves. The new regime has one principal purpose: to make it easier to punish CF personnel without having to worry about those pesky independent military judges or that frustrating burden incorporated from the criminal justice system, proof beyond a reasonable doubt.
And make no mistake, a finding of ‘guilt’ before a summary hearing and the imposition of the resulting punishment will not necessarily represent the end-state arising from that process. The adverse result of the summary hearing – before a decision-maker who is neither impartial nor independent (and who may not be particularly open-minded) – can, and likely will, be used to support other processes, such as remedial measures under Defence Administrative Order and Directive (DAOD) 5019-4 or Administrative Review under DAOD 5019-2. The punishment of ‘detention’ may be removed from the summary hearing process, but the eventual consequences of the process could still be quite severe, including compulsory release from the CF.
The shift away from safeguards and processes found in the criminal justice system for what may be characterized as minor or low-level ‘offences’ – or, pardon me, ‘infractions’ – also stands in marked contrast with the insistence that the Canadian Victims Bill of Rights from the criminal justice system must be incorporated into the Code of Service Discipline.
However, the present Blog post, and the short 3-part series that it introduces, will not focus on the frailties of the proposed summary hearing process. That will be fodder for future discussion.
Instead, in anticipation of the introduction of the summary hearing regime, it may be worthwhile to examine some peculiarities that appear to have arisen within the Code of Service Discipline at the summary trial level over the past couple of years. These peculiarities may help explain why the CF is shifting to the summary hearing regime and may also highlight some future concerns that we might have regarding the administration of that regime.
And these peculiarities are useful to illuminate not only legal considerations in the administration of what the OJAG refers to as ‘military justice’, but also some of the ethical dimensions of decision-making under the Code of Service Discipline. And these ethical dimensions extend not only to decision-makers, but also their legal advisors, and military lawyers directly involved in these processes.
Scope of Blog Series
We will examine three distinct issues arising within the current legislative regime pertaining to the Code of Service Discipline generally, and summary trials specifically:
Part I – Election for Court Martial & Charges under section 129 of the NDA
Anyone who has a working familiarity with the Code of Service Discipline as it is presently configured and administered will likely be aware that there are five offences under the NDA, for which a CF member does not have a right to elect trial by court martial. These five offences, often colloquially referred to as the ‘Baby 5’, include:
However, the suggestion that a CF member may not elect trial by court martial when charged with one or more of these offences is an over-simplification of the determination that must be made, pursuant to article (art) 108.17 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), by an officer exercising the jurisdiction of a presiding officer at summary trial.
Although many ‘Pre-Trial Determinations’ are enumerated at art 108.16 of the QR&O, that is not the only provision found under Section 6 of Chapter 108 of the QR&O, entitled “Pre-Trial Procedures”. Article 108.17 of the QR&O describes a vital pre-trial determination for any officer exercising jurisdiction at the summary trial level: whether to offer the accused an election for court martial.
It would be more accurate to describe the ‘Baby 5’ as offences that potentially do not give rise to a right to elect trial by court martial (even if the lack of election would appear to be a foregone conclusion). And the present Blog post focuses on the circumstances pertaining to this pre-trial determination when a CF member is charged with one or more offences under section 129 of the NDA.
Independent and Impartial Tribunal
Before we delve into art 108.17 of the QR&O and offences under section 129 of the NDA, it will be useful to offer a word or two on ‘independent and impartial tribunals’.
Para 11(d) of the Canadian Charter of Rights and Freedoms (Charter) guarantees that “Any person charged with an offence has the right … to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal …”. I hasten to add that section 11 of the Charter concerns “Proceedings in criminal and penal matters”.
When a CF member is charged under the Code of Service Discipline, there are two types of tribunals before which he or she may be tried: a summary trial before a presiding officer, or a court martial before a military judge, either with, or without, a panel.
The issue of whether military judges are sufficiently independent was the subject of a recent series of appeals before the Court Martial Appeal Court of Canada (CMAC), notably: R v Edwards, et. al, 2021 CMAC 2. Leave has been sought to appeal that judgment before the Supreme Court of Canada, and we are still awaiting a decision on that Application for Leave. I have commented previously on the issue of the independence of military judiciary, and more can certainly be said. However, the issue for the present Blog post concerns presiding officers, summary trials, and alleged offences under section 129 of the NDA.
There are three hallmarks for judicial independence:
The third of these factors was a central issue in Edwards, supra.
No reasonable person with even a modicum of understanding of these principles and of the Code of Service Discipline would suggest that presiding officers at summary trial satisfy these three requirements for independence. In fact, presiding officers do not satisfy any of these factors.
The harsh reality is that presiding officers at summary trial are not remotely independent or impartial.
But that doesn’t mean that summary trials are entirely flawed, and that the CF cannot rely on them to mete out disciplinary justice. There are a variety of safeguards to fairness built into the Code of Service Discipline at the summary trial level:
Clearly, there are significant parallels between articles 107.03 and 107.11 of the QR&O. Legal advice must be sought, both before a charge is laid and before a presiding officer disposes of the charge, where an accused holds a rank higher than Sergeant or where a charge can potentially give rise to a court martial, including circumstances in which the passage of time could preclude the exercise jurisdiction by a presiding officer before a summary trial. Notably, however, where a charge against an NCM below the rank of Warrant Officer does not give rise to a right to elect trial by court martial – circumstances in which there are fewer safeguards for fairness – there is no obligation to seek legal advice.
There is another significant ‘control measure’ or factor that impacts the fairness of summary trials that I have not listed above, and that pertains to the central theme of the present Blog post: the right to elect trial by court martial. Arguably, that factor is more significant than those that I have listed above, and is the single most important safeguard of fairness, independence, and impartiality for disciplinary tribunals. And we will return to that factor below. But, for the moment, let’s focus on the factors listed above, as there is a common thread through them.
Two of the significant safeguards for fairness at summary trial relate to training conducted and certified by the OJAG and legal advice offered by the legal officers of the OJAG. And the merit of that training, certification, and advice can be traced back to the institutional independence of the OJAG, the JAG herself, and the legal officers who provide advice to CF decision-makers on matters of military law. An eventual issue that must be addressed is whether that institutional independence is a sufficient safeguard.
Independence of the JAG, OJAG, and Legal Advisors
The JAG is the legal advisor to the Governor General, the Minister of National Defence (MND), the Canadian Forces, and the Department of National Defence on matters of military law (NDA, s 9.1). It is likely not controversial to assert that the Code of Service Discipline is manifestly military law. Notwithstanding that “… section 9.1 is not in derogation of the authority of the Minister of Justice and Attorney General of Canada under the Department of Justice Act …” (NDA, s 10.1), the JAG exercises the principal, if not exclusive role, of advising CF decision-makers on the Code of Service Discipline.
Additionally, the NDA assigns to the JAG the ‘superintendence’ of ‘military justice’ (NDA, s 9.2(1)). The Act does not define ‘military justice’. As I have explained previously, the current JAG and her predecessors have applied a narrow definition to ‘military justice’, equating it to the Code of Service Discipline. I have criticized this restrictive definition:
Welcome to the Blog of the Law Office of Rory G Fowler (14 March 2019)
What Precisely is Military Justice? (22 August 2017)
In any event, once the relevant definition under Bill C-77 (s 2(3)) comes into force, the ‘new’ definition of ‘military justice’ will be inserted into section 2 of the NDA: “… military justice means all aspects of the application of the Code of Service Discipline …”.
In light of this awkward ‘ret-conning’ of the term of art ‘military justice’, I have posed the (rhetorical) question: why define one term of legal art as another term of legal art? Wouldn’t it have been easier to amend section 9.2(1) of the NDA to read: “… The Judge Advocate General has the superintendence of the administration of the Code of Service Discipline …”? Or would that tend to reinforce the view that the interpretation of ‘military justice’ that has been applied for over 20 years was artificially too narrow?
Finally, section 9.3 of the NDA clearly establishes that “The Judge Advocate General is responsible to the Minister in the performance of the Judge Advocate General’s duties and functions.” Thus, by statute, the JAG reports to the MND, not the CDS, for the performance of her duties and functions as the legal advisor on matters of military law and the superintendence of ‘military justice’.
These provisions serve to provide the JAG with a degree of institutional independence. As I have explained in previous Blog posts, independence is contextual. Two questions that should be asked whenever someone asserts that someone or something is ‘independent’ are: (1) from whom; and, (2) to what extent? Although the JAG may not have independence that is identical to that of a military judge, the JAG does have a degree of institutional independence from the CDS and the CF chain of command.
But what about the legal officers who provide the ‘coal face’ legal advice to CF decision-makers?
Obviously, there are a great many potential decision-makers under the Code of Service Discipline. It would be impossible for the JAG to advise each and every one of them herself. This is clearly anticipated in the several regulatory provisions relating to the Code of Service Discipline, which refer to advice from a “… unit legal advisor …” or “… legal officer …”.
Consequently, the MND, under section 17 of the NDA, has issued a Ministerial Organization Order (MOO) establishing an ‘element’ of the CF called the Office of the Judge Advocate General (OJAG). The CDS subsequently issued a Canadian Forces Organization Order (CFOO) amplifying the MOO.
The Minister also enacted art 4.081 of the QR&O which serves to reinforce the independence of unit legal advisors through the independence of the JAG.
First, sub-art 4.081(1) of the QR&O requires that every legal officer whose duty is the provision of legal services to the Canadian Forces shall be posted to a position established within the Office of the Judge Advocate General. Additionally, the remainder of art 4.081 of the QR&O serves to reinforce the independence of legal officers when providing legal advice to CF decision-makers under the Code of Service Discipline:
(2) The Judge Advocate General has command over all officers and non-commissioned members posted to a position established within the Office of the Judge Advocate General.
(3) Where the Judge Advocate General is absent or unable to act, the legal officer authorized pursuant to section 10 of the National Defence Act to act for the Judge Advocate General shall assume command of the Office of the Judge Advocate General.
(4) The duties of a legal officer posted to a position established within the Office of the Judge Advocate General are determined by or under the authority of the Judge Advocate General and, in respect of the performance of those duties, a legal officer is not subject to the command of an officer who is not a legal officer.
These sub-articles further reinforce that: (1) the JAG commands the OJAG; (2) when the JAG is absent (and it appears that the current JAG, RAdm Bernatchez, has been ‘absent’ now for several months) a legal officer authorized under section 10 of the NDA will assume command in her stead; and, (3) a legal officer posted to the Office of the JAG will be responsible only to the direction of another legal officer within the OJAG for the performance of that legal officer’s duties as a legal advisor.
Article 4.081 of the QR&O serves an important function in safeguarding fairness in the Code of Service Discipline, as well as other processes established by, or under the authority of, the NDA that pertain to the broader concept of what I characterize as ‘military justice’ (at least, until the disingenuous definition from Bill C-77 comes into force). The legal advice upon which decision-makers rely comes, purportedly, from an institutionally independent legal advisor. However, one of the issues we will explore, below and later, is the extent to which this institutional independence truly safeguards fairness.
A Tangential, but Illustrative, Anecdote
Back when I was still serving as a legal officer, some CF decision-makers whom I advised would occasionally refer to my ‘Tech Net’ – referring to the chain of command within the OJAG. However, as I explain below, that is an incorrect characterization.
For those unfamiliar with the colloquialism ‘Tech Net’, it refers to a ‘technical network’ separate and apart from the chain of command. For example, a Logistics Officer posted to an infantry battalion as the Supply Officer would fall within the chain of command of that unit. His or her immediate supervisor would be the Officer Commanding Administration Company and the next level of the chain of command would be the CO.
Sometimes, it might be advantageous for the Supply Officer to seek information or even instruction from peers or more senior Logistics Officers within the formation (i.e., Brigade or Division) or elsewhere (e.g., National Defence Headquarters). Similarly, when the CO of the unit is examining career progression for her subordinates, she might reach out to the Branch Advisor for specialists like her Supply Officer. This is what is generally meant by the ’Tech Net’.
However, for a legal officer, the Office of the JAG is not the ‘Tech Net’; it is the legal officer’s element (akin to a unit) and his or her chain of command. The Deputy Judge Advocate (DJA) for CFB Kingston may be posted, physically, to CFB Kingston, but he is on the establishment of the Office of the JAG. Similarly, the legal officers whose duty is to provide legal services to Canadian Special Operations Command (CANSOFCOM) are not posted to CANSOFCOM – they are posted to positions on the establishment of the Office of the JAG. As I would politely remind some senior CF decision-makers: I am neither your staff officer nor your subordinate; I am your legal advisor.
And that very clear delineation of command, accountability, and responsibility is vital to ensuring independence of legal advice. Those officers (and NCM) – CF decision-makers – whom I advised were welcome to communicate to me or my supervisors in the Office of the JAG any concerns that they may have regarding my support to them and their units, formations, elements, etc. But they were not my supervisors, nor did they evaluate my performance or competence as a legal advisor.
While that relationship may not have given rise to a level of independence equivalent to ‘judicial independence’, it represented, at the very least, an arm’s length separation that served to buttress the independence of the legal advice that I provided. Ostensibly, the lack of favour, advantage, or disadvantage arising from the relationship served to reinforce the reliability of the legal advice that I provided. And the same, ostensibly, would hold true for the current legal officers of the Office of the JAG.
And this independence of legal advice is vital for the maintenance and application of a fair and reasonable Code of Service Discipline.
Election for Court Martial
However, training, certification, and advice from institutionally independent legal officers only goes so far in ensuring fairness under the Code of Service Discipline, particularly in satisfying the Charter right to an independent and impartial tribunal. Arguably, the single most important factor that justifies the conduct of summary trials before presiding officers (who are not remotely independent), in light of the Charter guarantee of trial before an independent and impartial tribunal, is the availability for election for trial before a court martial.
As a general rule, any CF member charged under the Code of Service Discipline – which is a criminal or penal justice system – has the right to elect trial before a court martial. In other words, the CF member has the right to have the allegations against him or her tried before an independent military judge, rather than a presiding officer who is manifestly not independent in the same manner as a military judge.
However, sub-art 108.17(1) of the QR&O carves out exceptions to this general rule. This provision, and the exception it describes, has existed is some form for over 20 years. While it has been subject to some amendment – notably in September 2018 – it has remained largely as it is currently presented, for over two decades.
So why am I suddenly discussing it now, particularly since the issue of ‘election for court martial’ for ‘minor infractions’ may become moot under the summary hearing regime that will be introduced under Bill C-77?
I am doing so because it appears that there has been a trend in advice from the Office of the JAG that, where a charge under s 129 of the NDA concerns ‘deportment’, and is viewed as being ‘minor’ in nature, an election need not be offered under sub-art 108.17(1) of the QR&O. And that advice takes a very large and liberal approach to defining the term ‘deportment’ such that all, or nearly all, so-called ‘minor’ charges arising under section 129 of the NDA would be captured by this definition and, thus, would not give rise to a right of election for court martial.
And this should cause for concern for anyone who is concerned about the rule of law in the administration of the affairs of the CF.
And let’s not kid ourselves: I suspect it would not be controversial of me to suggest that the chain of command for the CF would prefer not to have to offer an accused an election for court martial, particularly for what may be characterized as ‘low level’ offences. The CF chain of command would prefer to deal with such matters at summary trial, where they control the process themselves. The problem is that some of the powers of punishment that are granted to presiding officers (particularly commanding officers) attract Charter scrutiny. The obvious example is the punishment of detention, which clearly implicates the accused’s liberty under section 7 of the Charter.
Consequently, as described below, the exception under sub-art 108.17(1) of the QR&O limits the powers of punishment where an election is no offered. Moreover, the exception is limited to a few select types of so-called ‘unique’ military offences. Although, quite frankly, what makes those offences special is debatable.
Arguably, those offences were viewed as the most common offences. They are certainly the most common offences disposed of at summary trial. Take a look at the data from the most recent JAG Annual Report (2020-2021) regarding disposition of charges at summary trial: by a massive margin, the three most common offences disposed of at summary trial were Absence without Leave (section 90 of the NDA); Conduct to the Prejudice of Good Order and Discipline (section 129 of the NDA), and Drunkenness (section 97 of the NDA). The same was true for the previous year. These three offences accounted for over 80% of charges disposed of at summary trial last year, and almost 85% for the previous year.
Were those the most common offences because they represent the most common misconduct by CF personnel, or are they the most common because a presiding officer need not offer an election for court martial if the presiding officer is willing to limit his or her powers of punishment? What the data does not – and cannot – signal is whether misconduct is being characterized in a manner by which a so-called ‘unelectable’ charge can be laid. And that is potentially where the mischief arises.
Charges under section 129 of the NDA are consistently one of the two most frequently laid charges (the other being Absence without Leave) under the Code of Service Discipline. By virtue of the definition that appears to have been advanced by the OJAG, any time that a CF member, regardless of rank or stage of professional development, is charged under section 129 of the NDA for contravention of “… any 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 …” (NDA, paras 129(1)(b) and (c)) that can be characterized as somehow involving ‘deportment’, and the presiding officer exercising summary trial jurisdiction declares the matter to be ‘minor’ in nature, then that CF member is not entitled to an election for court martial under the exception established at sub-art 108.17(1) of the QR&O.
I do not know if this interpretation has been applied universally and consistently across the CF. Presumably, in light of the frequency with which this issue arises under the Code of Service Discipline, it will have been the subject of specific institutional analysis by the ‘Military Justice’ Division under the supervision of the Deputy Judge Advocate General (DJAG) Military Justice. Although the JAG does not personally advise on every matter arising under military law, her role as ‘Superintendent of Military Justice’ and the authority she exercises over the Office of the JAG, oblige and empower her to issue direction to unit legal advisors to ensure consistency of legal advice on issues of law that one might reasonably anticipate will arise regularly and frequently.
If the Office of the JAG is not advising on matters such as ‘election for court martial’ in a consistent fashion, then that raises a separate concern regarding institutional fairness under the Code of Service Discipline. Therefore, for the purposes of this discussion, I will assume that the specific instances of which I have been informed represent the institutional approach of the CF and the Office of the JAG. More specifically, what I propose to address below is the correct interpretation of the exception under sub-art 108.17(1) of the QR&O regarding the general right to elect trial by court martial.
For greater clarity of discussion, I will provide a recent justification offered by a presiding officer who refused to offer an election for court martial to an accused who had expressly demanded a right to elect trial by court martial. Although I have maintained much of the actual language offered by the presiding officer, I have paraphrased or parsed some text to maintain the anonymity of both the presiding officer and the accused. I note, also, that the accused had obtained brief written advice from a legal officer at Defence Counsel Services regarding this issue. The provision of such advice falls within the mandated responsibilities of Defence Counsel Services.
Example of Refusal to Offer an Election for Court Martial
An NCM of the CF was charged with one or more offences under section 129 of the NDA. Specifically, the NCM was charged with contravening an order published for the general information and guidance of the Canadian Forces. While the accused may, or may not, have held a rank that obliged the charge layer and presiding officer to obtain legal advice in relation to their duties and functions (pursuant to articles 107.03 and 107.11 of the QR&O, respectively), the presiding officer nevertheless appeared to have obtained legal advice in the performance of the presiding officer’s duties and functions.
The accused realized that the presiding officer was not going to offer an election for court martial. So, the accused sought advice from a legal officer at Defence Counsel Services. The legal advice was relatively brief (it was not presented with the same degree of detail as my analysis below). However, the essence of the advice was as follows:
Here is the response of the presiding officer [edited for anonymity]:
QR&O 108.17(1) directs that an election for court martial need not be offered for a charge under NDA Section 129 if the offence relates to dress and deportment (among others), and if the circumstances of the offence are minor. In this case, you have stated you disagree that the offence relates to the definition of deportment.
QR&O 1.04 directs that words and phrases shall be construed according to the meaning in the Concise Oxford Dictionary (unless a technical term or elsewhere defined). I have been provided the following definition by my legal advisor: Deportment is defined as “bearing, demeanor, or manners”. The particulars of your charges relate directly to your bearing, demeanor, and manners for the alleged incidents occurring on [DATE] and [DATE] (and therefore deportment as defined above), which is covered under Section 129.
Additionally, as the officer exercising summary trial jurisdiction, I conclude based on the initial charges that the alleged incidents are sufficiently minor in nature and therefore the two charges you have received under Section 129 do not require an election to be tried by Court Martial. I have also been informed by my unit legal advisor that this is the prescribed manner to fairly and promptly deal with similar such offences across Canada and I feel confident in proceeding with a Summary Trial at this time.
I note, tangentially, that, if a presiding officer wished to avoid offering an election under sub-art 108.17(1), and the charge(s) related to one of the ‘Baby 5’ offences, all that the presiding officer would have to do is allege that it was ‘minor’ in nature. Whether an offence is ‘minor’ in nature is open to a degree of subjective interpretation. From a practical, if cynical, perspective, it could be argued that the decision turns not on the objective seriousness of the allegation but whether the presiding officer is willing to limit his or her powers of punishment to those identified at para 108.17(1)(b) of the QR&O in order to retain jurisdiction.
While that could be viewed as placing the ‘cart before the horse’, that is the practical impact of the provision, and the source of potential mischief: if a charge-layer can shoehorn the alleged misconduct into one of these five offences, and the presiding officer is willing to limit his or her powers of punishment to no more than a fine of up to 25% of the accused’s net monthly income, the chain of command can proceed without offering an election for court martial. As I say: that may present a cynical perspective; but that does not mean that it does not reflect the practical reality of the application of the Code of Service Discipline or the frank manner in which CF decision-makers proceed.
I contend that the presiding officer presented an incorrect interpretation of the relevant law.
Moreover, I am concerned that the legal advice upon which the presiding officer purportedly based his decision represented legal advice that the presiding officer wanted, rather than the legal advice that the presiding officer needed. I do not know, specifically, what legal advice the presiding officer received; nor am I entitled to know the content of that legal advice. I can only assume that the presiding officer’s explanation was predicated upon the legal advice that the presiding officer had received from the unit legal advisor.
It is possible that the unit legal advisor provided legal advice that was predicated upon an ‘institutional position’ advanced by the OJAG generally. As I indicate above, where a legal issue arises frequently, we might reasonably expect the JAG to develop an ‘institutional position’ on that legal issue. Ideally, the OJAG would develop an ‘institutional position’ on such legal issues in order to ensure a consistent approach across the CF. While specific facts may differ, the relevant factors and general legal principles will be similar, permitting consistent application of the law.
However, even if the presiding officer relied upon legal advice that reflects an ‘institutional position’ from the OJAG, I contend that the analysis is incorrect at law. And, if that represents an ‘institutional position’ developed by the OJAG, then that represents a broader, institutionalized miscarriage of justice. Instead of one legal officer tailoring the legal analysis to suit the desired outcome of a specific presiding officer, it would represent the OJAG, institutionally, tailoring legal analysis to suit a desired institutional outcome.
So, let’s look at the relevant provision, and how it should be interpreted.
Article 108.17 of the QR&O
For the sake of clarity, I reproduce the relevant portions of article 108.17 of the QR&O below:
108.17 – ELECTION TO BE TRIED BY COURT MARTIAL
(1) An accused person triable by summary trial in respect of a service offence has the right to be tried by court martial unless:
(a) the offence is contrary to one of the following provisions of the National Defence Act:
129 (Conduct to the Prejudice of Good Order and Discipline), but only where the offence relates to military training, maintenance of personal equipment, quarters or work space, or dress and deportment; and
(b) the circumstances surrounding the commission of the offence are sufficiently minor in nature that the officer exercising summary trial jurisdiction over the accused concludes 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.
(2) Where the accused person has the right to be tried by court martial, the officer exercising summary trial jurisdiction shall, before commencing a summary trial, cause the accused person to be informed of that right and given a reasonable period of time, that shall be in any case not less than 24 hours, to:
(a) decide whether to elect to be tried by court martial; and
(b) consult legal counsel with respect to the election (see article 108.18 – Opportunity to Contact Legal Counsel on Election or waiver); …
Returning to the above-cited reasoning presented by our unnamed presiding officer, I contend that it presents a disjunctive, and therefore, erroneous, interpretation of para 108.17(1)(a) relating to offences under section 129 of the NDA. As I state above, that presiding officer was presented with a brief analysis by a legal officer from Defence Counsel Services that concluded that the accused was entitled to receive an election for court martial. The legal officer from Defence Counsel Services presented an analysis similar to that which I offer below, albeit, not as detailed.
I will also state that, not only did the presiding officer reject the analysis from the legal officer from Defence Counsel Services, but the presiding officer also suggested that, because the legal officer was assigned to Defence Counsel Services, the legal officer was “… not directly part of the Office of the Judge Advocate General …” and that the legal officer, therefore, “… may not be as familiar [as a Deputy Judge Advocate] with the current practices for Summary Trials which are administered in the CAF.”
While those misguided statements are not determinative of the proper interpretation of sub-art 108.17(1), they are illustrative of the problems that can arise when a decision-maker is closed-minded or ill-informed. First, Defence Counsel Services is very much a part of the Office of the JAG. Although there are some legislative protections – limited though they may be – that offer a degree of institutional independence to Defence Counsel Services, and the role and function of Defence Counsel Services differs from that of the rest of the OJAG, those legal officers are still very much: (a) legal officers; and, (b) posted to the Office of the JAG.
Second, the functions of the legal officers posted to Defence Counsel Services are squarely focused on the Code of Service Discipline, including, but not limited to: (1) Provision of legal advice of a general nature to an assisting officer or accused person on matters relating to summary trials; and (2) Provision of legal advice with respect to the making of an election to be tried by court martial.
It is bold to the point of arrogance for a presiding officer – a layperson with limited training in military law – to suggest that a legal officer at Defence Counsel Services is not sufficiently familiar with the current practices for summary trials. And I certainly hope that the presiding officer was not simply reiterating a comment from the unit legal advisor.
However, those are merely two examples of how the presiding officer in question misconstrued the nature of Defence Counsel Services and the professional knowledge of the legal officers posted to those positions. The presiding officer made much more significant errors in terms of the proper interpretation of sub-art 108.17(1) of the QR&O.
And note that the presiding officer asserted that he was relying on legal advice from his unit legal advisor. If you will permit me another brief tangential comment, Dear Reader, this is illustrative of the tendency for CF decision-makers to use ‘legal advice’ as a shield or buttress for their decisions – provided that the legal advice supports their desired outcome.
It can arise that, when a CF decision-maker receives legal advice that the decision-maker views as overly constraining or inhibiting his or her ‘freedom of manoeuvre’ in decision-making, the decision-maker may be inclined to state “Well, that’s just your legal advice, I am not obliged to follow it …” (or words to that effect). However, when the legal advice comports with the decision-maker’s desired course of action, the decision-maker will often be inclined to cite that factor in defence of the decision, particularly if presented with factors or arguments to the contrary: “My legal advisor said that I could do it …”.
I tend to view with a degree of reservation CF statutory decision-makers who ‘cherry pick’ when they will follow legal advice, particularly when the determinative factor appears to be whether the advice is consistent with their desired outcomes.
This is why the institutional independence of the OJAG is a vital factor regarding fairness of processes – not limited to the Code of Service Discipline – and why the OJAG generally, and legal officers individually, must guard against being influenced by a decision-maker’s desired outcome, in lieu of predicating legal analysis on the law and legal principles. In other words, I contend that it becomes highly problematic if legal officers or the OJAG ‘go along to get along’ in order to avoid being seen as ‘obstacles’ to decision-making, even if that decision-making is unreasonable, unfair, or unlawful (recalling that statutory decision-making that is unreasonable or unfair is inherently unlawful).
Principles of Statutory Interpretation
In his response to the accused’s request for an election for court martial, the presiding officer alluded to the fundamental principle of statutory interpretation in Canada (although he did not cite it precisely as it is described, repeatedly, in jurisprudence and various editions of The Construction of Statutes). While he alluded to this principle, he failed to apply it correctly.
Therefore, I will. We’ll start with the fundamental principle of statutory interpretation in Canada:
The words of a statute [must] be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature. (Rizzo & Rizzo Shoes Ltd. (Re),  1 SCR 2, para 21, per Iacobucci J)
This fundamental rule is typically regarded as an amalgam of three classic rules of interpretation:
It is presumed that legislators choose to adopt language which accurately conveys the effect of the law without imposing an unnecessary burden of translation and explanation.
Additionally, whenever possible, every part of a provision should be assigned meaning. (See: R v AA, 2015 ONCA 558, per Watt JA, para 67; R v Hutchinson, 2014 SCC 19, per McLachlin CJ and Cromwell J, para 16; Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (LexisNexis, 2008), at 210).
Consequently, the modern approach to statutory interpretation (or, in this case, regulatory interpretation) can be divided into a separate inquiry of: (a) the regulation’s textual meaning; (b) the legislative intent; and (c) the entire context including the consideration of established legal norms.
And that takes us to the “ordinary meaning” that the presiding officer described (but failed to apply correctly). This is the natural meaning that arises when the provision is simply read through. Note the nature of that principle: it requires the provision to be read through in its entirety, in order to understand the context.
And where there is ambiguity about this context, we may look to the legislative history of the provisions. That invokes the “Mischief Rule” mentioned above. However, art 108.17 of the QR&O is a regulation enacted by the Governor in Council. Unlike amendments to the NDA, which are often (but not always) debated in Parliament, we cannot look to Hansard or prior versions of a proposed Bill to identify elements of legislative intent. We can typically only look to the wording of the legislation.
So, let’s return to the specific legislated direction given to presiding officers. The determination regarding whether an election must be offered for charges under section 129 of the NDA has two determinative factors. One of those factors – and one that also applies to the other four offences listed in sub-article 108.17(1) of the QR&O – is that the offence is minor in nature. The presiding officer asserted that the allegations were minor in nature. As I indicate above, this determination is open to interpretation, but any reviewing court would likely give the presiding officer a robust margin of appreciation regarding whether the offence was ‘minor’ in nature. The true practical implication is that the presiding officer is prepared to accept the limitations on his powers of punishment under para 108.17(1)(b).
However, the more pertinent factor for our present discussion is the one that is unique to offences under section 129 of the NDA. The right to elect trial by court martial may be withheld:
… only where the offence relates to military training, maintenance of personal equipment, quarters or work space, or dress and deportment; and
When examining this provision under the fundamental principle of statutory interpretation and the ‘ordinary meaning’ rule, we must first examine the entirety of the provision. It lists three specific categories or circumstances of alleged misconduct: (1) military training; (2) maintenance of personal equipment, quarters or work space; and (3) dress and deportment. This carves out a distinction between types, characteristics, or categories of offences under section 129 of the NDA; some will fall within these categories, others will not.
When legislation enumerates a series of factors, the principle of ejusdem generis suggests that these factors represent the same kind or class of factor – in this case, the nature of specific circumstance of impugned misconduct captured under section 129 of the NDA. There is a broad range of conduct (or acts or omissions) that can be captured under section 129 of the NDA as prejudicial to good order and discipline. However, the exception under sub-art 108.17(1) of the QR&O is limited to “military training; maintenance of personal equipment, quarters or work space; or dress and deportment”.
These are specific activities within military functions. More specifically, these military activities are core aspects of initial military training. The intent behind this provision was to withhold the right to elect trial for court martial for offences involving these functions while a CF member is undergoing initial training in the Canadian Forces. That is the period in which the so-called ‘habit of obedience’ is first instilled in CF personnel, when these three activities form part of the nucleus of that training. Arguably, it could be applied more broadly to those same functions or activities even for trained CF personnel, but only for those activities within the context conveyed by sub-art 108.17(1) of the QR&O.
In the specific example that I have provided, the presiding officer focused solely upon the term ‘deportment’. He did not look up the definition himself; he relied upon the definition provided by his legal advisor. The definition of ‘deportment’ upon which the presiding officer relied is one of the definitions offered by the Concise Oxford Dictionary. But it isn’t the only definition offered by that dictionary. In fact, it is the second definition offered. The first definition offered is: “… the way a person stands and walks, particularly as an element of etiquette …”. As the legal officer from Defence Counsel Services pointed out, this would cover things like saluting (which some might characterize as ‘paying compliments’).
The presiding officer also applied a markedly disjunctive interpretation of the provision. His error was not limited solely to the disingenuous and selective definition of ‘deportment’ – provided to him by his unit legal advisor. He failed to consider the entirety of the provision at sub-art 108.17(1) of the QR&O which cites three categories of circumstances, the third of which is “… dress and deportment …”, not simply “deportment”. The clear legislative intent is to read those terms conjunctively.
The narrow and disjunctive interpretation relied upon by the Presiding Officer was over-broad and cannot be reconciled “… harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature …” – or, more specifically, the intent of the Governor in Council when enacting that regulation.
Offences under section 129 of the NDA – conduct, acts, and/or negligence that are prejudicial to good order and discipline – are inherently about deportment in a general sense. If one were to apply the definition relied upon by the presiding officer, all (or nearly all) offences under section 129 of the NDA would fall within the definition of ‘deportment’. Consequently, there would be no need for the provision under sub-art 108.17(1) of the QR&O relating specifically to offences under section 129 of the NDA, and which carved out an exemption to the right to elect trial by court martial for some specific types or categories of offences under s 129 of the NDA. It would have been sufficient to list section 129 with the other four enumerated sections.
However, when enacting article 108.17 of the QR&O, the Governor in Council expressly distinguished offences under s 129 of the NDA from the other four offences under sections 85, 86, 90, and 91 of the NDA. The only factor relevant to the offences under those four sections was that “… the circumstances surrounding the commission of the offence are sufficiently minor in nature that the officer exercising summary trial jurisdiction over the accused concludes 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.”
Offences under section 129 of the NDA are subject to a second factor. The Governor in Council clearly sought to distinguish different types of misconduct under section 129. The over-broad interpretation relied upon by the presiding officer failed to give effect to the Governor in Council’s legislative intent.
The same is true if one were to examine the French version of sub-article 108.17(1) of the QR&O, which has parity with the English version:
(1) Un accusé qui peut être jugé sommairement à l’égard d’une infraction d’ordre militaire a le droit d’être jugé devant une cour martiale, sauf si les conditions suivantes s’appliquent :
a) l’infraction a été commise contrairement à l’une des dispositions suivantes de la Loi sur la défense nationale :
129 (Conduite préjudiciable au bon ordre et à la discipline), mais seulement lorsque l’infraction se rapporte à la formation militaire, à l’entretien de l’équipement personnel, des quartiers ou du lieu de travail, ou à la tenue et au maintien;
If you will forgive a brief sojourn into my Second Official Language …
En français, l’ORFC 1.04 énonce:
Les mots et expressions sont interprétés selon le sens ordinaire approuvé, indiqué dans le Concise Oxford Dictionary s’il s’agit d’un texte anglais, ou dans Le Petit Robert s’il s’agit d’un texte français,
Et le Petit Robert (2021) définit « maintien » de la manière suivante:
maintien n.m. XIIIe siècle « de maintenir » 1. Manière de se tenir, manifestant les habitudes, le comportement social de qqn. air, allure, attitude, contenance, façons, port, posture, tenue. Maintien noble, élégant (prestance); désinvolte, étudié (pose).
Consequently, the reference to dress and deportment (ou, en français, “… à la tenue et au maintien …”) under para 108.17(1)(a) of the QR&O must be read conjunctively. It refers to a combination of both of those elements. Indeed, the French version is even more specific regarding the exception: it refers to ‘dress’ and the maintenance thereof. Thus, the exception regarding ‘dress and deportment’ refers to minor matters like the wearing of uniforms, the shining of boots, or the paying of compliments in uniform. These are also indicative of the basic etiquette instilled in CF personnel during initial military training. This is consistent with the maintenance of kit and quarters and of basic military training. The intent is clearly not to encompass all aspects of deportment of a CF member – that is the role of section 129 of the NDA generally.
Another general rule of interpretation is that the ‘specific’ modifies the ‘general’. In general, a CF member has a right to elect trial by court martial. The specific rule at sub-art 108.17(1) of the QR&O carves out exceptions to that general rule. Generally, section 129 of the NDA creates offences under the Code of Service Discipline when CF members demonstrate conduct, acts, or omissions that are prejudicial to good order and discipline. In general, these offences focus on the conduct and comportment of CF personnel. However, when that comportment meets both of the conditions precedent under sub-art 108.17(1) of the QR&O pertaining to section 129 of the NDA, an election for court martial need not be offered to the accused. For greater clarity, this means that not only must the offence(s) under section 129 of the NDA be of a minor nature such that only the minor penalties listed at para 108.17(1)(b) are warranted, the offence(s) must pertain specifically to one (or more) of: (1) military training; (2) maintenance of personal equipment, quarters or work space; and (3) dress and deportment.
Finally, where there is ambiguity (i.e. two different interpretations are possible) in the application of a provision in a penal regime (which includes the Code of Service Discipline), the ambiguity must be resolved in favour of the interpretation that favours the accused. (R v McIntosh,  1 SCR 686, 705 per Lamer CJ)
Consequently, in the circumstances described above, an accused clearly has a right to elect trial by court martial unless the alleged offence under section 129 of the NDA falls within the narrow spectrum of misconduct described when one reads the entire relevant provision under sub-art 108.17(1) of the QR&O. Failure to apply this provision correctly is a jurisdictional error that deprives the accused of a fundamental right under the Code of Service Discipline.
An accused may seek review of such an error under art 108.45 of the QR&O or, alternatively, a review may be initiated under art 116.02. However, if the presiding officer’s conclusion is derived from institutional advice from the OJAG, how likely is it that a review authority, acting under art 108.45 of the QR&O, would quash the decision and the jurisdictional error?
It is much more likely that the review authority, relying on legal advice from a different legal advisor (sub-arts 108.45(8) and (9)), but, nevertheless, relying upon the same institutional position of the OJAG, would uphold the presiding officer’s decision. Instead, the accused would be obliged to seek subsequent judicial review of the (eventual) review authority’s decision before the Federal Court under section 18.1 of the Federal Courts Act. And that application would be at the CF member’s own personal expense.
And any CF member who decides to pursue judicial review would be well advised to seek counsel quickly. Unlike the presiding officer or the review authority, a CF member tried and convicted by summary trial does not have recourse to comprehensive legal advice, free of charge, regarding all matters arising in the administration of the affairs of the CF. And, if the CF member wishes to seek judicial review ‘as of right’, section 18.1 of the Federal Courts Act establishes a 30-day limitation period for an applicant to bring a Notice of Application for judicial review. Otherwise, the CF member will be obliged to first bring a potentially costly Motion before a Federal Court Judge, seeking permission to bring such an application.
The analysis that I offer above, particularly in the latter part of the Blog post, establishes the limited scope of the exception to the right to elect trial by court martial, pursuant to sub-art 108.17(1) of the QR&O, where an accused faces one or more charges under section 129 of the NDA. Specifically, the phrase ‘dress and deportment’ must be read conjunctively and in the context of all three ‘categories’ of circumstances identified in relation to section 129.
In practical terms, this means that it is not sufficient for a presiding officer to characterize one or more offences under section 129 of the NDA as broadly, generally, or vaguely touching upon the ‘deportment’ of the accused, and thereby refuse to offer the accused an election for trial by court martial. After all, most allegations prosecuted under section 129 of the NDA relate, in some way, to a CF member’s deportment.
However, as is likely obvious from the breadth of the discussion above, this Blog post – and the two that will follow – is not solely about the interpretation of a specific regulatory provision relating to the Code of Service Discipline. The broader issue concerns the nature of statutory decision-making, particularly within the context of the exercise of coercive powers of processes that can have a profound impact on the subject of the statutory decision.
It also concerns the ethics arising for both the statutory decision-maker and the legal officer advising him or her.
And the foregoing discussion raises several questions, including, but not limited to:
Ultimately, if the position taken by the above-mentioned presiding officer is predicated upon an ‘institutional position’ of the Office of the JAG, should we be concerned if that ‘institutional position’ is predicated upon questionable interpretation of art 108.17 of the QR&O?
What does this signal regarding the superintendence of military justice?
What does this signal about how the anticipated summary hearings will be administered?
And to what extent does the ‘institutional independence’ of the Office of the JAG truly contribute to fairness in the administration of the Code of Service Discipline?
 National Defence Act, RSC 1985, c N-5 [NDA], s 249.27.
 QR&O, n 2, para 108.16(1)(a)(iii).
 Marginal Notes in legislation form no part of the enactment: Interpretation Act, RSC 1985, c I-21, s 14. However, the Interpretation Act is silent on whether Headings form part of the enactment. The preamble of an enactment shall be read as part of the enactment: Interpretation Act, s 13. Whether Headings form part of the enactment is not settled law; however, at the very least, headings can form an interpretive aid.
 See: Disciplining Military Judges (20 February 2020); Military Judicial Independence: I have heard of orders, and rumours of orders … (26 September 2020); Court Martial Appeal Court of Canada – R v Edwards, et al., 2021 CMAC 2 (14 June 2021).
 Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I.,  3 SCR 3; R v Lippé,  2 SCR 114; Mackeigan v Hickman,  2 SCR 796.
 However, there is a lacuna in this provision. The certification obtained from the Presiding Officer Certification Training (POCT), or, subsequently, the Presiding Officer Re-certification training (PORT) expires after 4 years. The provision is silent on the requirement to maintain that certification.
 Note, however, that the JAG does not benefit from the same ‘security of tenure’ that is enjoyed by two of her subordinates: the Director of Military Prosecutions (DMP) and Director of Defence Counsel Services (DDCS). Those two officers can only be removed from their positions upon recommendation of the respective ‘Inquiry Committee’ established for those to positions: NDA, n1, ss 165.1(2.1) and 249.18(2.1) respectively. These ‘Inquiry Committees’ bear a marked resemblance to the Military Judges Inquiry Committee (MJIC): NDA, ss 165.31 and 165.32. Ironically, the JAG has no similar protection regarding removal from her position.
 Ministerial Organization Order (MOO) 96-082 Re: Office of the Judge Advocate General, dated 1 August 1996. See: Welcome to the Blog of the Law Office of Rory G Fowler (14 March 2019).
 OJAG CFOO.
 Actually, sub-article 4.081(1) of the QR&O, n 2, states that every legal officer whose duty is to provide legal services “… shall be posted to a position established within the office of the Office of the Judge Advocate General …”. There is clearly a typo in the regulation – however, this is the wording that was enacted by the Minister. The French language version clearly refers to the “Cabinet du juge-avocat general”. It might be worthwhile to correct the error in the English language version. Perhaps the current round of regulatory amendments under Bill C-77 would offer such an opportunity.
 According to the Government of Canada website describing the ‘Office of the JAG’, <https://www.canada.ca/en/department-national-defence/corporate/organizational-structure/judge-advocate-general/office-judge-advocate-general.html>, and last modified 21 October 2016, “The Office of the JAG is composed of the Directorate of Military Prosecutions, the Directorate of Defence Counsel Services, and the following five Divisions: Military Justice, Administrative Law, Operational Law, Regional Services, and Chief of Staff.” The ‘Military Justice’ Division is responsible for the institutional and strategic advice on the Code of Service Discipline, while the majority of unit legal advisors are posted to ‘Regional Services’. The unit legal advisors provide direct legal support to units across Canada, but are guided by the centralized institutional advice from ‘Military Justice’. However, I believe that this description of the composition of the Office of the JAG is partially out of date. It is my understanding that the Office of the JAG has created a second ‘Military Justice’ Division that is focused on the implementation of Bill C-77, effectively dividing the ‘Military Justice’ role into: ‘Military Justice – Legislation” and “Military Justice – Operations”, although those may not be the precise terms used.
 Federal Courts Act, RSC 1985, c F-7.
 Technically, judicial review of statutory decision-making by the executive represents an exercise of discretion by the judiciary. However, where an application for judicial review is brought within the limitation period established at section 18.1 of the Federal Courts Act, the court will consider the application.