Some Observations on ‘Military Justice’ at Summary Trial – Part III

Director of Military Prosecutions & the Exercise of Discretion under s 165.13 of the NDA

 

In Parts I and II of this series, we examined circumstances in which an election for court martial must, or should be, offered to an accused under the Code of Service Discipline.  That discussion starts with section 162.1 of the National Defence Act (NDA)[1], which confers on any person charged under the Code of Service Discipline a general right to elect trial by court martial.  Section 162.1 of the NDA also empowers the Governor in Council to prescribe, in regulations, circumstances in which this right may be withheld.  Remembering that any such prescription must comply with the Canadian Charter of Rights and Freedoms (the Charter), including para 11(d) of the Charter, the Governor in counsel has enacted such regulations at art 108.17 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O).

In Part I, I discussed what appears to be a prevailing, erroneous, and unreasonable interpretation of sub-art 108.17(1) of the QR&O pertaining to charges laid under section 129 of the NDA.  Specifically, I contend that presiding officers (or, more precisely, 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 Canadian Forces (CF) who have been charged under section 129 of the NDA.

In Part II, I examined the conflict of interest that can arise when a legal officer from the Office of the JAG (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.  It is relatively rare for a legal officer to be charged under the Code of Service Discipline, although it has been known to happen.[2]  I am aware of the odd charge against a legal officer under s 129 of the NDA for a ‘negligent discharge’ (or, more accurately, improper handling of a service rifle or service pistol).  But the principal purpose of the hypothetical 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 we will revisit that theme in the conclusion to this series.

The focus of the current blog post is on the power granted to the Director of Military Prosecutions (DMP) under section 165.13 of the NDA:

If the Director of Military Prosecutions is satisfied that a charge should not be proceeded with by court martial, the Director of Military Prosecutions may refer it for disposal by an officer who has jurisdiction to try the accused person by summary trial.

 

A power conferred by statute can also be characterized as ‘discretion’ – the capacity to select between two or more outcomes when exercising a statutory decision-making function.  And when we discuss a power conferred on DMP, we are not discussing solely decision-making by DMP himself, but also any “… officers who are barristers or advocates with standing at the bar of a province …” who might assist or represent DMP.[3]  Therefore, when I refer below to DMP exercising discretion, making a decision, or performing a function, it could be DMP himself, or a legal officer acting under DMP’s direction.

Section 165.13 represents the power conferred on DMP to refer a charge or charges back to an officer exercising summary trial jurisdiction notwithstanding that the charge or charges were referred to court martial.  On first regard, this would appear to be a very broad and unfettered power.  It could be read as conferring upon DMP the power to negate the right of an accused to be tried by court martial.  However, such an interpretation would appear to be inconsistent with section 162.1 of the NDA.  Therefore, to better understand the nature of this power, I suggest that we examine its practical application.

I am aware that this power has been exercised by DMP in the past.  However, I cannot provide you, Dear Reader, with open-source citation of those circumstances.  Such decisions are not publicized in a manner similar to prosecutions at court martial.  The exercise of discretion under section 165.13 of the NDA is not reported on the Chief Military Judge’s website in a manner similar to decisions and judgments at court martial.  They are not posted on the JAG website.  Indeed, to the best of my knowledge, the circumstances under which DMP has exercised this seemingly broad discretion have never been reported in the JAG Annual Report on the Code of Service Discipline or the report provided by DMP.[4]

As a result, this discretion is largely exercised outside of the public eye, and certainly, outside contemporary judicial scrutiny.  DMP would necessarily have to advise the relevant ‘officer exercising summary trial jurisdiction’ when exercising this power and the accused would also necessarily be informed of the decision.  But that is markedly distinct from subjecting the exercise of discretion to contemporaneous judicial scrutiny or the public reporting of its use.

If the accused believed that the exercise of this discretion was either improper or an abuse of process, the accused would still be subject to summary trial jurisdiction.  Any objection raised by the accused would have to be raised before a presiding officer at summary trial.  And if, following the completion of a summary trial, the accused wished to contest DMP’s actions, he or she would have to seek review under art 108.45 of the QR&O.

We should ask ourselves: What are the odds that the presiding officer and review authority would conclude that they have no authority over DMP’s actions?  What are the odds that the presiding officer or review authority would conclude that they had jurisdiction to proceed at summary trial, after DMP has exercised his discretion under section 165.13?

In effect, the accused would likely have to exhaust the processes under the Code of Service Discipline before the accused could seek judicial review before a court of competent jurisdiction (e.g., the Federal Court) whereby the court could scrutinize the exercise of discretion under section 165.13 of the NDA.

I contend that there are some fairly significant practical barriers to ensuring that this discretion is exercised in a fair and ethical manner.

And I contend that there are some fairly significant legal and ethical issues arising from the exercise of this discretion.

 

What kind of charges are we talking about?

Generally, there are three circumstances in which a charge or charges might be referred to court martial:

1. Where the charge or charges may only proceed by court martial;
2. Where the accused must be offered (or is offered) an election for court martial, and subsequently elects trial by court martial; and
3. Where an officer exercising summary trial jurisdiction believes that the charge or charges is/are sufficiently serious that it/they should be tried at court martial, where the full scope of sentencing would be available to the service tribunal.

 

I suggest that the first type of charge – if that is the only type of charge laid – would not be subject to the exercise of DMP’s discretion under section 165.13 of the NDA.  If a charge relates to an offence that is not listed at art 108.07 (jurisdiction – commanding officers) or art 108.125 (jurisdiction superior commanders) of the QR&O – i.e., an offence that may only be tried at court martial (such as sexual assault, contrary to section 271 of the Criminal Code[5]), DMP could not refer it back to “… an officer who has jurisdiction to try the accused person by summary trial …”, because no officer has jurisdiction to proceed by summary trial.  However, circumstances in which such charges are laid in conjunction with charges that may be tried at summary trial will be relevant to our discussion below.

The second category of offence can give rise to some significant legal and ethical issues.  Articles 108.07 and 108.125 of the QR&O list the offences that may be tried by a commanding officer (CO) or a superior commander, respectively.  Any offence falling within the jurisdiction of a CO may, potentially, be delegated to a ‘delegated officer’ under section 163(4) of the NDA and art 108.10 of the QR&O.  Most of these offences will give rise to the accused’s right to elect trial by court martial pursuant to s 162.1 of the NDA.  However, as we discussed in Part I of this series, that right can be limited by regulations enacted by the Governor in Council, and that can create an ‘incentive’ for charge layers to seek to lay charges in relation to offences in which an election for court martial might be withheld.

At sub-art 108.17(1) of the QR&O, the Governor in Council has limited the right of the accused to elect trial by court martial for five specific offences under the NDA, but only where the conditions precedent described under that sub-article are met.  Those conditions precent are described at Part I of this series, and I will not repeat them here.  However, I do note that, in colloquial parlance, these offences are often referred to as the ‘baby five’, and I will use that term below.

If an accused is charged with an offence that can be tried by summary trial, and an election for court martial must be offered to the accused, and the accused subsequently elects trial by court martial, can DMP then rely on section 165.13 to refer that charge back to an officer exercising summary trial jurisdiction?

In effect, can DMP nullify an election for court martial that the accused has made pursuant to the accused’s statutory right under s 162.1 of the NDA?

Would that be a proper exercise of the discretion at section 165.13?  Would it be a proper exercise of prosecutorial discretion?  Is it relevant if the offence is one for which the officer exercising summary trial jurisdiction must offer the accused an election for court martial, as of right, as distinguishable from the ‘baby five’ offences listed at sub-art 108.17(1) of the QR&O?  Is it relevant if the presiding officer offers an election for court martial, but DMP contends that an election was not obligatory?

Finally, the third category represents circumstances in which a CO or superior commander does not offer the accused an election for court martial, but concludes that the matter is sufficiently serious that the powers of punishment available to an appropriate officer exercising summary trial jurisdiction are not sufficiently robust.  What if DMP concludes that the powers of punishment available to the potential presiding officer are sufficiently robust and refers the charges back to the presiding officer?  Is it possible that section 165.13 of the NDA was specifically intended for such rare circumstances?

For all of these categories of offences, we must remember that, although the referral of charges to court martial follows a prescribed process established under Chapter 109 of the QR&O, the process technically begins with the laying of charges under Chapter 107 of the QR&O (specifically, under art 107.02) and involves procedural decision-making prescribed in Chapter 108 of the QR&O as well.  This can, occasionally, be a convoluted process.  However, the Governor in Council has created a specific role for the ‘chain of command’ in laying charges, exercising discretion in the disposition of charges, and referring charges to DMP for eventual prosecution at court martial.

This process involves decision-making by a charge layer, by various officers exercising summary trial jurisdiction (including various pre-trial determinations under articles 108.16 and 108.17 of the QR&O), up to a referral authority exercising powers and functions under Chapter 109 of the QR&O.

In particular, when a CO or superior commander applies to a referral authority under art 109.03 of the QR&O, the CO or superior commander has specific enumerated obligations, including: providing reasons for the application, providing a brief summary of the relevant circumstances relating to the allegations, and providing recommendations regarding disposition of the charge or charges.  In other words, this is the point at which the CO or superior commander explains, to the extent that the officer believes necessary, why the charges must or should be referred to DMP.  Similarly, when a referral authority refers the charges to DMP under art 109.05 of the QR&O (and section 164.2 of the NDA), the referral authority also may make recommendations.

Ostensibly, this process represents an opportunity for those statutory decision-makers and actors in the chain of command to provide context or robust explanations based upon their leadership functions and desired end-states.  I contend that, all too often, they are treated as rote, procedural functions, in which the chain of command is content to leave it, principally, to their legal advisors to recommend the content of such correspondence.

We must also remember that there are two broad and distinct circumstances regarding referrals to court martial: (1) circumstances in which referral to court martial is necessary if the charges are going to be prosecuted (i.e., where the charge may only be prosecuted by court martial or where the accused has elected trial by court martial); or, (2) circumstances in which the chain of command concludes that their powers of punishment are not sufficient to maintain discipline.  The former circumstance arises markedly more frequently.

I contend that the rationale behind section 165.13 of the NDA is most relevant to the third category of offence described above, which coincides with the second, less frequent, basis for a referral to court martial: circumstances in which a CO or superior commander concludes that powers of punishment at summary trial are insufficient to maintain discipline.  This rationale is predicated upon the presumption that DMP, who has carriage of prosecutions at court martial, is well placed to determine whether the powers of punishment at court martial are truly warranted for a particular matter.

However, is that how this power – this broad discretion – is actually being used by DMP?  I contend that it is not, at least not uniquely, exercised in such circumstances, and that the manner in which it is exercised can give rise to ‘mischief’ that can amount to an abuse of process.

When read in conjunction with section 162.1 of the NDA, I contend that DMP’s discretion at section 165.13 of the NDA was not intended to defeat or circumvent the accused’s right to elect trial by court martial.  And I contend that, if it is used in that manner, it constitutes an abuse of process.

In order to identify the legal and ethical issues arising from the exercise of this discretion, it is useful to delve into specific circumstances that could give rise to its exercise.  I have identified above the three categories or types of charges that could give rise to prosecution by court martial.  However, the circumstances in which DMP might exercise his power under section 165.13 are more nuanced.  Consequently, we would benefit from a more detailed examination of the circumstances or the variations in the charges that can give rise to a referral for court martial and the subsequent reliance on section 165.13 of the NDA.

 

Variations on Circumstance

Not all potential charges will necessarily give rise to the exercise of discretion by DMP under section 165.13 of the NDA.  We have already identified that, if a charge is laid that may only be prosecuted at court martial, DMP will not be in a position to exercise the discretion at section 165.13 to refer the charge to an officer exercising summary trial jurisdiction.  But what if a CF member is charged with more than one offence?  What if a CF member is charged with offences that give rise to different rights or obligations under the Code of Service Discipline?  What if a CF member is charged with an offence that may be tried before a presiding officer at summary trial, as well as a charge that may only be tried before a court martial?  For example, what if a CF member is charged with Drunkenness contrary to section 97 of the NDA and with sexual assault contrary to section 271 of the Criminal Code and incorporated into the Code of Service Discipline under para 130(1)(a) of the NDA?

What if a CF member is charged with an offence for which the statutory right to elect trial by court martial may be withheld (e.g., Quarrels and Disturbances contrary to section 86 of the NDA) as well as an offence for which an election must always be given (e.g., common assault contrary to section 266 of the Criminal Code and incorporated into the Code of Service Discipline under para 130(1)(a) of the NDA)?

What if a CF member is charged with an offence in which a presiding officer may, potentially, withhold an election for court martial under sub-art 108.17(1) of the QR&O (e.g., Insubordinate Behaviour contrary to section 85 of the NDA), but where the presiding officer determines that an election must be offered because she considers that the limitation on the powers of punishment at para 108.17(1)(b) of the QR&O are too restrictive in light of the alleged seriousness of the offence?

When we examine DMP’s discretion under section 165.13 of the NDA, we must bear in mind that we are dealing with at least two, if not three, relevant decision-makers before we reach a point at which DMP may exercise discretion: (1) the charge-layer; (2) the officer exercising jurisdiction at summary trial; and, (3) in many of the scenarios, the accused.

In our discussion, we are dealing with the eventual exercise of discretion by DMP under section 165.13 of the NDA; however, the manner and route by which we arrive at that ‘decision point’ informs the nature of that decision, including whether it is legally and ethically sustainable.

In order to illustrate the concerns arising from the exercise of this discretion, I propose four specific scenarios (although the last scenario is sub-divided into two distinct variations):

1. Where two charges are laid – one that may only be prosecuted at court martial, and one that may be prosecuted at summary trial, unless the accused elects trial by court martial (and where an election for court martial must always be offered);
2. Where two charges are laid – one that may only be prosecuted at court martial, and one listed under sub-art 108.17(1) of the QR&O for which an officer exercising summary trial jurisdiction may withhold the election for court martial;
3. Where two charges are laid – both of which may be prosecuted at summary trial; however, one of which will always give rise to an election for court martial and the other of which is listed under sub-art 108.17(1) for which an officer exercising summary trial jurisdiction may withhold the election for court martial;
4. Where two charges are laid – both of which may be prosecuted at summary trial, and both of which are listed under sub-art 108.17(1) for which an officer exercising summary trial jurisdiction may withhold the election for court martial. This scenario could proceed in two distinct ways:

a.  The officer exercising summary trial jurisdiction believes that the allegations are sufficiently serious, particularly in light of the circumstances of both alleged offences, that, although the powers of punishment at summary trial are sufficient, the officer believes that the necessary powers of punishment, if the accused is found guilty, will exceed the threshold at para 108.17(1)(b) of the QR&O. Therefore, the officer exercising summary trial jurisdiction offers the accused an election for court martial; or

b.  The officer exercising summary trial jurisdiction believes that the allegations are sufficiently serious, particularly in light of the circumstances of both alleged offences, that the necessary powers of punishment, if the accused is found guilty, will exceed the powers of punishment available at summary trial. Consequently, the officer exercising summary trial jurisdiction concludes that the charges must be referred to court martial.

 

I acknowledge at the outset that two variations for Scenario #4 may seem far-fetched to some people.  After all, I suspect that there are more than a few CF personnel who believe that charge layers, and their legal advisors, are inclined to ‘shoe-horn’ allegations into one of the ‘baby five’ offences listed at sub-art 108.17(1) of the QR&O in order to deprive the accused of a right to elect trial by court martial.  Though cynical, such a belief is not without merit.  As I have already described in Part I of this series, it appears that the prevailing legal advice from the OJAG regarding the application of para 108.17(1)(a) of the QR&O to charges laid under section 129 of the NDA is unreasonably and incorrectly overbroad in order to achieve that very result.

However, Scenario #4 is nevertheless illustrative of some of the legal and ethical issues that I believe are relevant.  As I indicate above, DMP’s exercise of discretion under s 165.13 of the NDA does not appear to arise frequently and is certainly not exercised in a publicly transparent manner.  Consequently, I do not have access to open-source examples of its exercise.  All that I do know for certain is that this discretion has been exercised in the past.  I must, therefore, resort to hypothetical examples in order to illustrate my concerns.

 

Scenario #1

Context: One charge laid for an offence that can only be tried before court martial; one charge laid for an offence that may be tried by summary trial absent an election for court martial.

Example: One charge of sexual assault, contrary to section 271 of the Criminal Code, and laid under para 130(1)(a) of the NDA; one charge of Disgraceful Conduct contrary to section 93 of the NDA.

 

In this scenario, DMP cannot refer both charges back to an officer exercising summary trial jurisdiction.  One of the charges may only be tried before a court martial.  But what if, under section 165.12 of the NDA, DMP ‘non-prefers’ the charge that may only be tried before a court martial (i.e., the charge of sexual assault).  The term ‘non-preferral’ is not defined expressly under the NDA but has nevertheless entered the lexicon of military justice.  It is distinct from withdrawal of a charge.[6]  It signals that DMP will not proceed with a particular charge, but that does not preclude preferral and prosecution of that charge in the future.[7]

Two of the likeliest legitimate reasons for a non-preferral of a charge include: (1) the charge that was laid and referred to DMP is not the most appropriate charge, given the evidence; or, (2) the evidence provided to DMP does not support a conclusion that there is a reasonable prospect of conviction.

One presumes that a decision by DMP to ‘non-prefer’ a charge will be based upon valid reasons at law and not for an improper or ulterior purpose.  However, we must also remember that, when DMP ‘non-prefers’ charges, those decisions are typically accompanied by very broad, general, and even vague explanations, including simple conclusory statements of fact, such as “I have decided not to prefer the charge(s) laid …”

In Scenario #1, the only way that DMP could exercise his discretion under section 165.13 of the NDA is if he ‘non-preferred’ the charge that can only be prosecuted before a court martial (i.e., the charge of sexual assault).  DMP could then refer the other charge back to an officer exercising summary trial jurisdiction.  The charges in this scenario were almost certainly referred to DMP without offering an election to the accused.  After all, since one of the charges could only be prosecuted at court martial, there would be no utility is seeking an election from the accused.

If the sole remaining charge – for which the accused has a right to elect trial by court martial – were referred back to an officer exercising summary trial jurisdiction, it is possible – even likely – that the accused would elect trial by court martial.  It is therefore more likely that, if DMP was unwilling or unable to prosecute the charge of sexual assault (or any other charge that may only proceed before a court marital), for whatever reason, DMP would simply ‘non-prefer’ that charge and proceed with the other before court martial.  Moreover, if DMP were to choose to ‘non-prefer’ a charge that is as politically sensitive as sexual assault, I suggest that DMP would only do so when the evidence was exceptionally weak.  As I have indicated previously, DMP has demonstrated a willingness to proceed with charges alleging ‘sexual misconduct’, even where there may not have been a reasonable prospect of conviction.

 

Scenario #2

Context: One charge laid for an offence that can only be tried before court martial; one charge laid for an offence that may be tried by summary trial and for which a presiding officer may withhold the election for court martial.

Example: One charge of sexual assault, contrary to section 271 of the Criminal Code, and laid under para 130(1)(a) of the NDA; one charge of Drunkenness contrary to section 97 of the NDA.

 

There is potential for mischief in this scenario, however, it can be counter-balanced by practical considerations.

Using the example provided above, we can see that one of the charges – the one that must be prosecuted at court martial – is markedly more serious than the second charge, for which an election for court martial need not be offered, provided that the condition precedent at para 108.17(1)(b) of the QR&O is met.  As with Scenario #1, since one of the charges may only proceed by court martial, the charges would likely be referred to DMP without the officer exercising summary trial jurisdiction (or, more accurately, pre-trial jurisdiction) turning his or her mind to whether an election should be offered for the other charge.

However, if DMP chooses to ‘non-prefer’ the more serious charge that may only be prosecuted at court martial, what then?  Technically, DMP could refer the ‘other’ charge back to an officer exercising summary trial jurisdiction.  And that may be done regardless of the reason for the ‘non-preferral’ of the more serious charge.  For example, DMP could ‘non-prefer’ the charge because of the deficiency of evidence relating to that charge.  Alternatively, DMP could ‘non-prefer’ the charge simply because DMP knows that a Drunkenness charge could be prosecuted at summary trial without offering an election for court martial.

Non-preferring a charge simply to avoid the scrutiny of an independent and impartial military judge would seem to be a craven act.  However, where perfunctory or conclusory reasons are offered for a decision, there are no means for discerning the true reason for the non-preferral.  Moreover, in the example provided, where the charges laid included both sexual assault and Drunkenness, such a decision would be exposed to ‘external’ influences or actors.  There is a distinct possibility that the complainant who alleged sexual assault would become quite vocal if DMP did not prosecute the more serious of the two charges.

That was certainly the impression conveyed in the description of the procedural background in R v Captain Stacey, 2019 CM 3017 (and in that matter, the charge was laid under section 129 of the NDA alleging contravention of the CF Harassment Prevention and Resolution policies).  The prosecution in R v Stacey was eventually stayed due to unreasonable delay that contravened para 11(b) of the Charter, which protects an accused’s right to trial in a reasonable amount of time.  However, that does not mean that the matter did not give rise to elements of abuse of process.

In R v Stacey, after a military prosecutor decided not to prefer charges (nearly 2 years after the complaint had been made and the 18-month long investigation by the Military Police was commenced), the complainant then wrote to the JAG (and, it appears, other senior CF and Defence personnel) to complain about that decision.  Two months later, a ‘new’ decision was subsequently made, by a more senior military prosecutor, to prefer the charge.  Because of the passage of time, the charges could only proceed by court martial.[8]  Note, too, that DMP initially opposed the disclosure of information relating to DMP’s ‘reconsideration’ of the charges (R v Captain Stacey, 2019 CM 3018).

While the judgment in R v Stacey was ostensibly about an accused’s right to trial without unreasonable delay, the background of that judgment demonstrates the influence that can be exerted upon statutory decision-makers like DMP.  A great deal is said about the independence of DMP and the Canadian Military Prosecution Service (CMPS) – including by DMP himself – but most of that discussion is focused on the purported independence of DMP and the CMPS from the chain of command of the CF and even the JAG.[9]  While it is important to have a military prosecutor who is free from unreasonable influence by the CF chain of command, it would be naïve of us to assume that there are not other factors that can influence their decision-making.  Public criticism of DMP can also influence prosecutorial decision-making.  It is not inconceivable that criticism of DMP suggesting a lack of resolve in prosecuting sexual misconduct could potentially cause DMP to pursue prosecutions and prefer charges even where there is not a reasonable prospect of conviction.  No one likes to be criticized publicly, and such criticisms can generate over-reactions for the sake of ‘being seen to be doing something’.

Consequently, I suggest that it is unlikely for DMP to exercise his discretion under section 165.13 of the NDA to ‘non-prefer’ serious charges simply to remove an accused’s right to elect or otherwise proceed by court martial before an independent and impartial military judge, where such a decision could be subject to criticism by the complainant in the more serious charge, or other public criticism.

 

Scenario #3

Context: Two charges are laid, both of which may be prosecuted by summary trial, but one of which is listed under sub-art 108.17(1) of the QR&O for which an officer exercising jurisdiction at summary trial may withhold the election for court martial.

Example: One charge of disobedience of a lawful command contrary to section 83 of the NDA and one charge of insubordinate behaviour contrary to section 85 of the NDA.

 

There is great potential for mischief in this scenario.

The first charge will give rise to a right to elect trial by court martial (this is sometimes referred to, colloquially, as an ‘electable’ charge).  The right to elect trial by court martial may be withheld regarding the second charge, provided that the officer exercising summary trial jurisdiction concludes that “… the circumstances surrounding the commission of the [alleged] 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.”

In other words, from a more practical (if cynical) perspective, as long as the putative presiding officer is willing to limit herself or himself to penalties other than those listed at para 108.17(1)(b) of the QR&O, the presiding office may withhold the right to elect trial by court martial for the second charge.

However, by virtue of the first charge laid, the presiding officer must offer the accused an election for court martial.  Where multiple charges are laid, they should be set out on the same Record of Disciplinary Proceedings and must be disposed of together.[10]  Consequently, the right to elect trial by court martial arising from the first charge supersedes the capacity of the officer exercising jurisdiction at summary trial to withhold that right for the second charge.

Conceivably, there are some who might suggest that this example is not realistic.  They might suggest that, in light of the prevailing desire by the chain of command to avoid circumstances in which such an election must be offered to an accused, it is unlikely that any charge layer would lay an ‘electable’ offence in tandem with one of the offences listed at sub-art 108.17(1) of the QR&O.  While such a view may be cynical, it is not without justification.[11]

Consistently, the two most common offences for which charges are laid under the Code of Service Discipline are those under section 90 (Absence Without Leave) and 129 (Conduct to the Prejudice of Good Order and Discipline) of the NDA.[12]  In Part I, we discussed the disingenuous interpretation of the portions of sub-art 108.17(1) of the QR&O pertaining to charges laid under section 129 of the NDA.

Would it come as any surprise to anyone that, consistently, the most frequent charges disposed of under the summary trial process, after those under sections 90 and 129 of the NDA, include sections 85 (Insubordinate Behaviour), 86 (Quarrels and Disturbances) and 97 (Drunkenness)?[13]

Indeed, the five offences most frequently disposed of at summary trial are the five offences listed at sub-art 108.17(1) of the QR&O.

Now, there is more than one possible explanation for this phenomenon.  For example, one might argue that those five offences were typically the subject of the most frequent types of charges observed prior to the enactment of Bill C-25 (over 20 years ago) – which introduced significant changes to the Code of Service Discipline – and that trend has simply carried on.

Alternatively, one might suggest that, of course those are the charges that are most frequently disposed of at summary trial: since an election need not be offered if those charges are laid, they will only be disposed of at summary trial, resulting in ‘over-representation’ in the data.  There is a good deal of logic to that assertion.  However, let’s see if we can scratch below the surface.

Despite some fairly specific data collected in the JAG Annual Reports, there is not a great deal of precise data published regarding the number of the charges laid under the ‘baby five’ sections for which an election for court martial was offered.  We know, for example, that in the reporting period for 2019-2020, 144 elections for court martial were offered to an accused, and that the accused elected court martial in approximately 18% of those cases.[14]  We are also told that, in the prior four annual reporting periods, the percentage of accused electing trial by court martial, when that election was offered, ranged fairly consistently between 22.33% and 24.09%.[15]  We also know that in each of the annual reporting periods from 2015-2016 to 2019-2020 the percentage of circumstances in which the accused was offered an election for court martial varied between 30.57% to 25.63%.[16]

[I note, tangentially, that sometimes the numbers reported in the JAG Annual Report do not appear to be consistent.  For example, in the most recent report available, which dates from 2 years ago – the JAG Annual Report 2019-2020 – the following statement is made:

During this reporting period, a total of 144 elections to be tried by court martial were offered to accused persons. Out of the 144 elections offered, 118 accused persons elected to be tried by summary trial, which represents 81.94% of the total elections offered. The remainder of the 26 accused persons elected to be tried by court martial, which represents 18.06% of the total elections offered.

However, the accompanying graph depicts 483 summary trials conducted in 2019-2020, in which 358 accused were not offered an election for court martial, and 125 accused were offered election for court martial, but chose summary trial.  The graph depicts 125, not 118, accused selecting summary trial when offered the election.]

However, there is no correlation offered regarding the number or percentage of charges to which sub-art 108.17(1) of the QR&O was applied, but where the officer exercising summary trial jurisdiction nevertheless offered the accused a right to elect trial by court martial.  More specifically, there is no data or analysis offered describing the circumstances or percentages in which a charge was laid under section 129 of the NDA and an election for court martial was either withheld or offered.  Such data would be invaluable, since (as I explained in Part I of this series) the determination of whether an election must be offered when a charge is laid under section 129 of the NDA involves a second factor, distinct from para 108.17(1)(b), which applies to all of the ‘baby five’ offences.

We do know that, on average, in approximately 70 to 75% of charges, an accused is not offered an election to court martial.  In other words, for between 70 to 75% of all accused, the statutory right under section 162.1 of the NDA of an accused to elect trial by court martial was avoided.

Therefore, it is not unreasonable for observers to conclude that effort is made to lay charges for which an election for court martial may be withheld from the accused.  And we have limited data relating to the decision-making regarding the laying and disposition of such charges.  It is conceivable that, if more than one charge is laid against an accused, charge layers in the CF will tend to avoid laying a presumptively ‘electable’ charge if charges under one of the ‘baby five’ can be laid instead.  Access to data beyond that which is published in the JAG Annual Reports would be useful in conducting such analysis.  Alternatively, the JAG could choose to delve into that data in a more meaningful fashion.

We must also remember that, even before DMP is placed in the position in which he might exercise his discretion under section 165.13 of the NDA, there are other decision-makers who could play a determinative role.

For example, if charges are laid as described in the example for Scenario #3, the charge layer will refer the charges to an officer who can exercise summary trial jurisdiction.  Where that officer is a commanding officer or a superior commander (as those terms are understood under the Code of Service Discipline) the officer may, pursuant to art 108.19 or art 108.195 of the QR&O, respectively, decide not to proceed with a charge.  This is a very broad discretion and the reasons for doing so may be perfunctory.

You can probably see where I am going with this analysis … if a charge layer lays an ‘electable’ charge in tandem with a charge described under sub-art 108.17(1) of the QR&O, it would be open to a CO or superior commander to choose not to proceed with the ‘electable’ charge, thereby leaving only the charge for which a presiding officer may withhold the election for court martial.  Consequently, the accused may be deprived of the right under section 162.1 of the NDA, and forced to proceed before a summary trial.

This would achieve the same practical effect as a circumstance in which both charges are referred to DMP, and DMP then exercises his discretion under section 165.13 of the NDA to ‘non-prefer’ the ‘electable’ charge and then refer the ‘unelectable’ charge back to an officer exercising summary trial jurisdiction.

Whether the decision-making is by a CO under art 108.19 of the QR&O, by a superior commander under art 108.195 of the QR&O, or by DMP under section 165.13 of the NDA, the effect is the same: notwithstanding that an accused is (or could be) offered an election for court martial due to the nature of one of the offences charged, that election is nullified by a decision either not to proceed with (a CO or a superior commander) or not to prefer (by DMP) the ‘electable offence’.  In either case, the legislated regime does not oblige the decision-maker to provide robust reasons for doing so.  Indeed, the ‘reasons’ could be as simple and conclusory as “I have decided not to proceed with the charge under section 83 of the NDA …” or “I have decided not to prefer a charge under section 83 of the NDA …”.  Those are not truly reasons; they are simply conclusory assertions regarding the decision made.

The mischief should be obvious: Charges are laid against a CF member.  At least one of those charges gives rise to a right to elect trial by court martial.  Based upon data collected and published by the Office of the JAG, that is an uncommon occurrence, as charges in up to ¾ of disciplinary proceedings under the Code of Service Discipline will not give rise to a right to elect trial by court martial.  However, an intervening decision-maker, whether a CO, a superior commander, or DMP, then makes a statutory decision that removes the ‘electable’ charge from the decision-making circumstances, thereby removing the right of the accused to elect trial by court martial.

The exercise of discretion by DMP can arise if the CO or superior commander ‘fails’ to exercise his or her discretion under art 108.19 or 108.195 of the QR&O to avoid having to offer the accused a right to elect trial by court martial.

There is potential for such discretion to be abused.  There is potential for such discretion to be exercised to avoid placing allegations before a truly independent and impartial tribunal (i.e., a military judge presiding at court martial).

And this is exacerbated by the lack of transparency in the exercise of that discretion.  The JAG Annual Reports do not present data or discussion relating to the exercise of discretion by a CO or superior commander under arts 108.19 and 108.195 of the QR&O.  Neither the JAG Annual Report nor DMP’s supplemental report to the JAG offer data or discussion regarding the exercise of discretion by DMP under section 165.13 of the NDA.  I am aware that this power has been used by DMP from time to time.  However, there is no public discussion or scrutiny of its use.

Conceivably, a CF member who is affected by the exercise of discretion under arts 108.19 or 108.195 of the QR&O or under s 165.13 of the NDA, could, eventually, seek judicial review of that discretion.  However, we are discussing a relatively nuanced discretion.  The CF member principally affected by the decision – the accused – would have to be alive to the nature and impact of such decisions.  The accused would have to be able to articulate how that decision amounts to an abuse of process.  And, even if the accused were in a position to articulate the specific abuse of process, he or she would generally need to benefit from presenting such an argument to an independent and impartial decision-maker.

The impact of the decision would deprive the CF member of the right to elect trial by court martial, before an independent and impartial military judge schooled in the law.  Consequently, the CF member would be limited to the process of a summary trial in order to test the lawfulness of such as decision.  That process is overseen by a presiding officer who is neither independent nor schooled in the law.  Nevertheless, that remains the accused’s sole opportunity, initially, to challenge such an exercise of discretion.  Assuming that the accused is unsuccessful at summary trial, the accused – now, presumably, offender – would have recourse to review under art 108.45 of the QR&O.  Of course, the review authority is also not independent, impartial, or schooled in the law in the same manner as a military judge.  It is only after the review under art 108.45 is completed that the accused/offender would be able to place an argument before an independent and impartial judge – this would be done by way of application for judicial review, and it would be done at the accused/offender’s own expense.

Of course, in order to get to that point, the CF member (aka accused) will have had to:

• Identify the abuse of process arising from the exercise of discretion by the CO, superior commander, or DMP;
• Articulate that abuse of process before the presiding officer at summary trial;
• Articulate (for a second time) the abuse of process before the review authority;
• Bring an application for judicial review within 30 days of the decision by the review authority; and
• (very likely) retain counsel to contest the abuse of process.

 

And it is vital that the CF member challenge the abuse of process at summary trial and in the review under art 108.45 of the QR&O.  The application for judicial review before the Federal Court is not a re-hearing of the matter.  It is a review of the actions and decisions of a representative of the executive to ensure that they were reasonable and, where relevant, complied with the prevailing law.

The capacity of the CF member to challenge such an exercise of discretion is further fettered by the limited reasons that are typically offered for such decisions.  As I note above, those ‘reasons’ will be perfunctory and conclusory.

 

Scenario #4

Context: One or more charges are laid, all of which may be prosecuted by summary trial, and all of which are listed under sub-art 108.17(1) of the QR&O for which a presiding officer may withhold the election for court martial.  However, the officer exercising summary trial jurisdiction either: (a) offers the accused an election for court martial, as the officer believes that the allegations are not minor, and consequently, powers of punishment beyond the limits of para 108.17(1)(b) may be necessary; or, (b) applies to refer the charges to DMP, as the officer believes that the powers of punishment available to a presiding officer are not sufficient to maintain discipline.

Example: One charge of insubordinate behaviour contrary to section 85 of the NDA and one charge of drunkenness contrary to section 97 of the NDA.  We will assume, for the sake of this example, that the circumstances of the insubordinate behaviour are such that the offence is viewed as ‘very serious’ by the chain of command.  However, I will not present specific details, as the object of this exercise is not to debate the objective (or subjective) severity of the hypothetical circumstances, but to examine the process and exercise of discretion by DMP.

 

Conceivably, the scenario described above may rarely arise.  As I posit above, the general trend under the Code of Service Discipline appears to be that, where possible, CF charge layers will lay charges that do not give rise to an election for court martial.  Such decisions and actions retain disciplinary decision-making with the ‘chain of command’ and thereby avoid subjecting the decision-making to judicial scrutiny.

In a ‘perfect world’, where charges are selected and laid based upon an objective assessment of factors, and not as part of a reverse-engineered attempt to avoid the possibility that an accused might elect trial by court martial, there would also be a possibility that an officer exercising summary trial jurisdiction could examine the general circumstances underlying allegations and, notwithstanding that the charges were limited to one or more of the ‘baby five’ under art 108.17 of the QR&O, determine that an election should nevertheless be offered.  I do not have concrete data over a sufficiently significant period of time to identify the percentage of charges where such circumstances arise.  Certainly, none of the JAG Annual Reports over the last few years break down such data.  The public has no way of knowing how many times elections were offered notwithstanding that the charges laid were limited to offences listed at sub-art 108.17(1).  I would be willing to bet a sizeable sum that, where charges and circumstances were limited to the ‘baby five’ listed under sub-art 108.17(1) of the QR&O, the percentage of cases in which an election was offered did not rise above single digits, if, in fact, it rose above zero.

However, I am willing to keep an open mind – a truly open mind, and not the fictive assertion by certain CF decision-makers – and posit that it is conceivable that an officer exercising summary trial jurisdiction could offer an accused an election for court martial in the Scenario #4 example, based upon an objective assessment of the seriousness of the allegations.

Alternatively, it is also conceivable that an officer exercising summary trial jurisdiction could apply to refer the matter for court martial, suggesting that even the maximum powers of punishment available to a presiding officer were insufficient to meet the interests of discipline.  While that represents an example that could be perceived as even more unlikely, it offers a similarly appropriate context for analysis.

Whether the charges are referred to DMP because the accused elects trial by court martial, or the relevant CO or superior commander applies to refer the charges to DMP because of a perception that the powers of punishment at summary trial are insufficient, a circumstance will arise where charges are referred to DMP that could, potentially, be tried by summary trial.

What would be the implications if DMP, relying on section 165.13 of the NDA, were to refer one or more of the charges back to the officer having summary trial jurisdiction?

Technically, on a plain reading of the provision, DMP could do so if DMP concluded that the officer exercising jurisdiction at summary trial had sufficient powers of punishment.  Ostensibly, it is this sort of circumstance for which this provision is truly intended.  Rather than being a mechanism by which DMP might frustrate an accused’s right to be tried by an independent and impartial court martial, it would appear that this provision is intended to correct an over-estimate or exaggeration by the ‘chain of command’ of the seriousness of allegations.  But even that raises questions regarding respective roles under the Code of Service Discipline.

Let’s trace the manner in which such decision-making could arise in the example that I offer above.

An officer, Captain Bloggins (again, no relation to Major Bloggins or Sgt Bloggins) is charged with insubordination and drunkenness arising from the same incident.  Captain Bloggins may only be tried by a superior commander, whose powers of punishment are limited to a reprimand, a severe reprimand, or a fine of up to 60% of the officer’s monthly pay (or a combination of a fine and one of the two types of reprimand).  The superior commander exercising summary trial jurisdiction views the circumstances as sufficiently egregious that she considers using her full powers of punishment and will not limit herself to a fine of no more than 25% of monthly pay.  Consequently, she offers Captain Bloggins the opportunity to elect trial by court martial.  Captain Bloggins elects trial by court martial, and the superior commander sends the charges to an appropriate referral authority, who refers the charges to DMP.

Alternatively, the superior commander may conclude that, in light of the circumstances, her powers of punishment are deficient for the maintenance of discipline.  The superior commander may believe that specific punishments, which are not available to her as a presiding officer at summary trial, may be necessary.  Or, she may be uncertain which punishments would be appropriate, but is certain that a fine, reprimand, or combination thereof would be insufficient.  In any event, she then applies to the referral authority, who concurs, and refers the charges to DMP.

Note that, in the alternative example, the referral authority is not obliged to refer the charges to DMP.  The referral authority may refer the charges back to the superior commander.  This alternative example is distinguishable from circumstances in which an accused elects trial by court martial ‘as of right’.  Where an accused elects trial by court martial ‘as of right’, and the officer receiving the election applies to the referral authority for referral to DMP, the referral authority is obliged to carry out this function.[17]  However, where charges are “… referred because the commanding officer or superior commander did not consider his or her powers of punishment to be adequate to try the accused person by summary trial …” and the referral authority “… is of the opinion that the commanding officer or superior commander has adequate powers of punishment to try the accused by summary trial …”, the referral authority may “… direct the commanding officer or superior commander to try the accused by summary trial …”.[18]

When the charges are referred to DMP, DMP considers the allegations to be less severe than did the superior commander and referral authority.  Or, perhaps, DMP does not wish to deal with what are perceived to be ‘mickey mouse’ charges at court martial.  Conceivably, there could be any number of different reasons why DMP might, under section 165.13 of the NDA, refer charges back to an officer exercising summary trial jurisdiction.  Again, DMP does not have to give robust reasons for doing so.  DMP could give perfunctory or conclusory reasons for doing so, and I contend, typically does.

However, such a decision creates dissonance.  The chain of command for the accused has concluded that the charges are sufficiently serious to warrant offering an election for court martial.  Alternatively, the chain of command has concluded that the charges are sufficiently serious that powers of punishment at summary trial are insufficient to maintain discipline, and the charges should be prosecuted by court martial.  Conceivably, if the relevant decision-makers in the chain of command, up to and including the referral authority (and their unit legal advisors), are doing their jobs properly, they will have explained in the correspondence referring the matter to DMP why they consider the allegations to be so serious that an election should be offered, or that the charges merit referral to court martial.

A common adage when discussing military discipline is that ‘discipline is a function of command’.  Certainly, the justification for a separate system of military justice, described in R v Généreux[19], is predicated in large part on the importance of empowering that chain of command with the capacity to maintain discipline, efficiency, and morale of the armed forces.  And that responsibility is conferred particularly, though not solely, on the leadership of the armed forces.[20]

Therefore, if DMP were to refer charges back to an officer exercising jurisdiction at summary trial, DMP would be indicating that he disagrees with the chain of command on this specific matter of discipline, and that the matter is not as serious as the chain of command has indicated.  Certainly, DMP can claim to have a greater understanding of the prosecutorial merits of the charges that have been laid.  However, the officers in the accused’s chain of command can lay claim to a comprehensive understanding of what is required to maintain the discipline, efficiency, and morale of the unit, formation, etc. which they each command, in the face of the alleged wrongdoing.

While it is unlikely that such a dissonance will arise, it remains a possibility.  But what outcome would arise from such a course of action?  No referral authority (or superior commander, or CO) can force DMP to pursue a prosecution – remember: DMP is ‘independent’.  Notwithstanding the DMP may be, and likely has been, influenced by external actors, DMP remains largely unfettered in exercising prosecutorial discretion, and, often, such discretion may be exercised on the thinnest of publicly-offered reasons or rationale.  All that the chain of command may do is force DMP into a position where DMP must make a decision.

In our example, if DMP were to refer such charges back to an officer exercising summary trial jurisdiction, I suggest that there are, generally, two possible outcomes.

One outcome would be for the officer exercising jurisdiction at summary trial to proceed as if an election for court martial had not been given.  That would mean that the presiding officer would be constrained by the threshold established at para 108.17(1)(b) of the QR&O.  Even if an election had been offered initially, the effect of that election would be nullified by DMP’s exercise of discretion.  If the presiding officer – the superior commander in our example – were to use powers of punishment that would normally permit the accused to elect trial by court martial, but did not offer a second election for court martial, that would amount to an abuse of process.

The alternative would amount to a ’game of jurisdictional chicken’.  If the officer exercising summary trial jurisdiction maintains the conclusion that an election for court martial must be offered (or, alternatively, that the charges are sufficiently serious to warrant trial by court martial) the relevant officer could again offer the accused an election for court martial or otherwise refer the charges to DMP.  That would signal to DMP the resolve of the chain of command that the charges are best disposed of at court martial.

While this outcome presents a potential absurdity of a decision-making loop, it also serves to highlight the distinct roles of various decision-makers in the Code of Service Discipline. This outcome would also appear to be unlikely, in light of the general trend by various decision-makers to avoid having certain charges placed before court martial.  However, it would certainly lead to an interesting version of the ‘blame game’ in terms of who was undermining the Code of Service Discipline.

 

Conclusion

You may be wondering, Dear Reader, why I have expended so much effort on a statutory provision upon which DMP has relied only a handful of times and might not rely on in the future.  After all, we are anticipating that the new ‘Military Justice at the Unit Level’ (MJUL), created under Bill C-77, will be implemented in less than two weeks.  Once that occurs, the discretion afforded to DMP at section 165.13 of the NDA will almost certainly not be used again for any charges laid after 20 June 2022.  [Granted, there may be a brief interregnum regarding charges that are laid before 20 June 2022 but are referred to DMP after that date.]

So, why bother discussing an issue arising from a discreet statutory provision, which is rarely used, and in a short time, may never be used again?

The reason for this discussion is that it presents both legal and ethical issues arising from an exercise of discretion by a decision-maker in the Code of Service Discipline.  It concerns an exercise of discretion that, although used infrequently, is relatively unfettered, and can be used in a manner that undermines fairness, and therefore, undermines the merit of the Code of Service Discipline.  And the new Military Justice at the Unit Level (MJUL) will introduce further opportunities for statutory decision-makers to exercise discretion that will be largely unfettered.  And the possibility of abuse in the exercise of that discretion should be of concern to anyone interested in the military justice system, particularly those who will be subject to it.

While I will be offering a subsequent Blog post, summarizing some of the issues raised by this series, for the moment, I will conclude our present discussion.  I have identified above different scenarios that could, potentially, give rise to DMP’s exercise of discretion under section 165.13 of the NDA.  It is my understanding that this power has been used by DMP in the past.  However, the specific circumstances under which this power has been exercised are not publicly reported.  And therein lies part of the problem.

This discretion is exercised after charges have been referred to DMP, but before a court martial has been convened.  As we have discussed before, under the Code of Service Discipline, courts martial are ad hoc tribunals.  They are convened for specific charges against specific accused.  The CF does not have a ‘standing’ or permanent court (notwithstanding that consecutive ‘Independent Reviews’ of the military justice system have highlighted this lacuna and recommended that it be corrected).  There are limited circumstances in which a military judge may exercise jurisdiction over certain processes under the Code of Service Discipline absent a convening order for a court martial (e.g., when conducting a review of a custody officer’s refusal to release someone who has been arrested under the Code of Service Discipline[21]).  However, generally, a military judge will only have jurisdiction – and the capacity and opportunity to scrutinize decision-making under the Code of Service Discipline – principally when a court martial has been convened.

Therefore, DMP may exercise this discretion absent contemporary scrutiny by an independent an impartial decision-maker (e.g., a military judge).  This discretion is therefore distinguishable from circumstances in which DMP: (1) exercises discretion to prefer (or re-prefer) a charge other than the charge laid against the accused[22]; (2) fails to prosecute a matter in a reasonable amount of time[23]; (3) objects to disclosure of information to the accused[24]; (4) fails to provide adequate particulars for the allegations[25]; or, (5)  pursues a prosecution where he lacks jurisdiction[26].  By its very nature, the exercise of discretion under section 165.13 of the NDA removes a charge from the purview of a military judge at court martial and sends the matter back to an officer exercising jurisdiction at summary trial.  In so doing, DMP removes the charge or charges from the jurisdiction of an independent and impartial trier of law and fact and places the charges back in the jurisdiction of a tribunal that is not independent (or schooled in the law).  And DMP may do so even where the accused has elected trial by court martial as is his or her right under section 162.1 of the NDA.

And that is where the mischief arises.

That is where we must question the ethical propriety of such decisions.

Of the scenarios that I describe above, Scenario #3 presents circumstances that are both possible and highlight the abuse of process that can arise in such circumstances.  In Scenario #3, the accused was charged with two offences, one for which an election for court martial must always be offered, and one for which that election could be withheld, provided that the conditions precedent at sub-art 108.17(1) of the QR&O are met.  Consequently, the accused must be offered an election for court martial.

If the accused elects trial by court martial, the officer exercising summary trial jurisdiction who receives that election must then apply for referral to DMP and the referral authority must refer the charges to DMP.

But what if DMP ‘non-prefers’ the ‘electable’ charge under section 165.12 of the NDA, and thereafter exercises his discretion under section 165.13 of the NDA to refer the other charge back to the officer exercising summary trial jurisdiction?

Certainly, DMP has exercised two different statutory powers conferred upon DMP.  And, if past examples of such decisions are a guide, DMP will offer cursory, conclusory ‘reasons’ for those decisions: e.g., “Pursuant to section 165.12 of the National Defence Act (NDA), I have decided not to prefer the charge under section 83 of the NDA, and hereby refer the charge under section 85 of the NDA back to the officer exercising summary trial jurisdiction, for disposal of that charge.”

But would that be fair?  Would that be reasonable?  Would that be a proper exercise of prosecutorial discretion, particularly in light of the fact that the accused expressly elected trial by court martial?  Would that be a proper exercise of discretion under section 165.13 of the NDA, in light of the statutory right conferred on the accused by section 162.1 of the NDA?

In these circumstances, those questions will not be posed, or answered, before or by an independent and impartial tribunal.  And that is because the charges are referred to a tribunal that is not truly independent and impartial.  The accused would have to raise that issue before the eventual presiding officer at summary trial.  That officer is unlikely to question DMP’s exercise of discretion.  Similarly, even if the accused sought review under art 108.45 of the QR&O, the review authority is unlikely to address that issue in a meaningful manner, even if the accused had the wherewithal to articulate why that exercise of discretion amounted to an abuse of process.

The first opportunity that an accused would have to challenge that exercise of discretion would be before the Federal Court.  And to do so, the accused would likely first have to exhaust remedies at summary trial and subsequent review (not that either the precising officer or review authority would be likely to review DMP’s exercise of discretion).  And the accused would have to raise this issue at summary trial, and subsequent review under art 108.45 of the QR&O, if he or she intended to raise the issue on judicial review.

Consequently, if DMP were to exercise the discretion at section 165.13 in the manner described in Scenario #3, from a practical perspective, it is unlikely that it would be subject to meaningful review.  To my knowledge, such decisions have not yet been subject to an application for judicial review before the Federal Court.  As a result, where that discretion has been exercised, it has been exercised with impunity.

And Impunity is rarely a ‘good thing’.

 

[1] National Defence Act, RSC 1985, c N-5 [NDA].

[2] R v Captain McKoena, 2005 CM 6.

[3] NDA, n 1, s 165.15.

[4] This power was mentioned, if generally, on page 1 of the Report of DMP, appended to the JAG Annual Report for 2019-2020.  However, there was no mention of the exercise of that power.  This is the same vague and general reference to the provision that can be found in earlier versions of the JAG Annual Report and DMP’s Report to the JAG.

[5] Criminal Code, RSC 1985, c C-46, s 271.

[6] NDA, n 1, subs 165.12(2).

[7] NDA, n 1 subs 165.12(4).

[8] Arguably, the accused could have waived that limitation period under art 108.171 of the QR&O.  Interestingly, the prosecution of Captain Stacey straddled the coming into force of art 108.171 – the allegations, investigation, and laying of the charge pre-dated the coming into force date of 1 September 2018.  An argument could be made that art 108.171 would not apply.  As that issue is tangential to the discussion in the present Blog post, I do not propose to delve into that issue.

[9] NDA, n 1, ss 165.1 and 165.17.

[10] QR&O, art 107.04.

[11] The Honourable Morris J. Fish, C.C., Q.C., “Report of the Third Independent Review Authority to the Minister of National Defence – Pursuant to subsection 273.601(1) of the National Defence Act, RSC 1985, c N-5”, (30 April 2021), p 94, para 354.

[12] Id, p 73, para 280.

[13] JAG Annual Report 2019-2020, Annex A.  Similar results are reported for the JAG Annual Reports for 2018-2019, 2017-2018, 2016-2017.

[14] JAG Annual Report 2019-2020, c 2, p 25.

[15] Id.

[16] Id.

[17] See QR&O, Chapter 109 generally, and  art 109.05 specifically.

[18] NDA, n 1, 164.2; QR&O, art 109.05.

[19] R v Généreux, [1992] 1 SCR 259.

[20] Id, 293-297.

[21] QR&O, arts 105.29 to 105.298.

[22] R v Spriggs, 2019 CM 4002.

[23] R v Stacey, 2019 CM 3017; R v Cubias-Gonzalez, 2017 CM 3003.

[24] R v Stacey, 2019 CM 3018.

[25] R v Banting, 2019 CM 2008.

[26] R v MacPherson, 2021 CM 2014.