R v Stillman & R v Beaudry Revisited

On 26 March 2019, a 7-judge bench of the Supreme Court of Canada heard argument on the appeals from the Court Martial Appeal Court (CMAC) in R v Stillman[1] and R v Beaudry[2], two prosecutions under the Code of Service Discipline.  Both CMAC judgments concerned paragraph 130(1)(a) of the National Defence Act[3]; however, differently constituted benches arrived at different conclusions.  Thus, the apex court is now in a position to provide greater clarity on this issue.

This appeal has already been the subject of a blog by Mr. Jesse Chisholm-Beatson on TheCourt.ca, who provides a summary of the developments leading to this appeal.  Before proceeding further with the present Blog article, readers may wish to review Mr. Beatson’s article.  (As an aside, it is heartening to see a blog article on military justice authored by someone who is not a regular participant in the military justice processes.  The military legal paradigm is typically dominated by a select few lawyers and scholars who are regular participants in these processes.  Examination of military legal issues is invigorated by scrutiny and scholarship by the broader legal community.)

The present Blog will deal with three specific issues:

1. What the appeal is about, and what the appeal is not about;
2. What might be meant by a jury of one’s peers; and
3. How might the Court address the broad discretion concerning the venue in which such matters are prosecuted?

 

What the Appeal is, and is not, about

The apex court is being asked to determine whether paragraph 130(1)(a) of the NDA contravenes section 11f of the Canadian Charter of Rights and Freedoms[4].  Put in more colloquial terms, the court is being asked to determine whether prosecution of offences under the Criminal Code[5] and other Acts of Parliament, within the military Code of Service Discipline, is unfair because it deprives the accused, in those circumstances, of trial by jury.  This is about prosecution of offences alleged to have occurred in Canada, during peacetime.

This appeal is not about offences alleged to have arisen on foreign deployments – that is pursuant to paragraph 130(1)(b).  Neither is this appeal about sexual misconduct in the CF – at least, it is not solely about the prosecution of sexual misconduct, such as sexual assault.  This second point in important.  A great deal of attention on military discipline over the past few years – certainly since the publication of the “External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces” [the Deschamps Report] – has focused on sexual misconduct and the prosecution of sexual assault.  However, section 130 of the NDA does not just incorporate offences under section 271 (sexual assault), 272 (sexual assault with a weapon or causing bodily harm) and 273 (aggravated sexual assault).  It incorporates all offences under any Act of Parliament[6].

The accused in Beaudry was charged with sexual assault causing bodily harm, contrary to section 272 of the Criminal Code, incorporated into the Code of Service Discipline under paragraph 130(1)(a) of the NDA.  However, the appeal in R v Stillman relates to nine different accused (and initially concerned 11 different accused), whose alleged offences ranged from firearms-related offences, to sexual assault, to offences under the Controlled Drugs and Substances Act, to forgery and fraud.

Thus, while these appeals may relate, in part, to sexual misconduct and Op HONOUR, that is not the defining characteristic of the appeals, notwithstanding that much of the focus is likely propelled by that headline-grabbing characteristic.

This characterization is important, as many people have focused on sexual misconduct-related offences, recalling that, in 1998, Parliament granted jurisdiction over sexual assault to the military under the Code of Service Discipline[7].  However, the Code of Service Discipline had jurisdiction over many criminal offences dating back to 1950, when the modern National Defence Act was enacted[8], and, prior to that period, under similar legislation pertaining to discipline for the (then) separate military services.

The appeals focus on section 11f of the Charter, which states:

 

11. Any person charged with an offence has the right …

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment; … [emphasis added]

 

Ultimately, these appeals are about the exception established in section 11f, to the right of trial by jury for any offence for which (in this case, Parliament) has prescribed a maximum punishment of at least five years imprisonment, and what the phrase “offence under military law” means regarding this exception.

Traditionally – if I may be permitted to use that term – the received wisdom has been that an offence under the Code of Service Discipline was an offence under military law.  Certainly, sections 130 and 132 of the NDA incorporate what would otherwise be ‘civilian offences’ under the Code of Service Discipline, thereby making those offence ‘service offences’[9].  But does that make them offences under military law?

The majority of the CMAC in Beaudry thought not.  However, as Chief Justice Bell stated in dissent, that reasoning parted company from prior judgments of the CMAC.  Mr. Chisholm-Beatson explored this background in his post, so I will not do so here.

There is compelling logic in the conclusion that a provision under an ordinary statute such as the NDA, which incorporates an offence of general application to Canadian society, into a military disciplinary regime, cannot mean that such an offence is an ‘offence under military law’.  Such an interpretation would mean that Parliament could define that constitutional term, as it sees fit.  That was certainly one of the principal arguments raised by Defence Counsel Services in the appeals.

This interpretation is reinforced by the broader context of section 11f: “…except in the case of an offence under military law tried before a military tribunal…”.  During oral argument, counsel for both Defence Counsel Services and Director Military Prosecution focused on how ‘… an offence under military law …” should be defined.  However, note that it is not just ‘an offence under military law’ that is exempt from this right, but such an offence “… tried before a military tribunal”.  This would tend to imply that the drafters of the Charter understood or expected that other types of offences might be tried before a military tribunal.  I do not suggest an ‘originalist’ approach to the Charter.  However, the meaning of a term of art used in constitutional legislation can be discerned from its relationship to other text in the same provision.

As counsel for the Director Military Prosecutions pointed out during the hearing, Part VII of the NDA (sections 286 to 307) creates offences under military law which are triable by civilian courts.  He did so, presumably, to distinguish these offences from those triable under the Code of Service Discipline, which are ‘service offences’ and which, at least to Director Military Prosecutions, should be interpreted as “… offences under military law …”.  However, he did not elaborate on the relevance of this factor to the full scope of the exception under s 11f of the Charter.  Just as there are offences under military law tried by civilian courts (e.g. Part VII of the NDA), there are offences under non-military law tried by military courts (e.g. Criminal Code offences triable by virtue of section 130 of the NDA).  The exception to ‘jury trials’ under section 11f of the Charter does not apply to either of these types of offences – it only applies to offences under military law, tried by military tribunals.

 

Trial by Jury – What’s in a name?

We must remember that what is at stake in section 11f of the Charter is the exception to the general rule that all people, charged with an offence for which the maximum punishment is at least 5 years imprisonment, are entitled to a trial by jury.  Therefore, some of the discussion at the hearing of these appeals turned on whether a Panel of a General Court Martial (GCM) could be characterized as a jury.

A jury is not defined under the Charter or the constitution.  Indeed, the size of a jury can vary – civil juries can be as few as 6 people[10].  A criminal jury is typically 12 people, but can have up to14 people if one includes alternates[11], and can continue even if reduced to 10 people[12].

Thus, is a Panel in a GCM simply a 5-person jury, by another name?

That is certainly a question that the CMAC had obliquely danced around in cases such as Beaudry, Déry, R v Royes[13], and earlier cases such as R v Reddick[14].

Counsel for Defence Counsel Services has argued that a GCM Panel is an extension of the executive.  They likened it to a corporate employer selecting a group of employees – or even managers – to preside over the prosecution of another employee.  The Panel members generally outrank the accused, particularly where the accused is a lower-ranking non-commissioned member (NCM).[15]

In response, the Director of Military Prosecutions has argued that a Panel is selected at random by the Court Martial Administrator, who operates under the aegis of the Chief Military Judge.  His argument, it seems, is that the selection of a panel is conducted in a fair and independent manner and, as closely as possible, mimics the random nature of jury selection in civilian trials.

Both of these comments have merit and reflect the circumstances – as far as they go.  Arguably, if the term ‘Panel’ is either legislatively amended to be ‘jury’ or is read by the Court as being analogous to ‘jury’, then one might argue that a person tried by court martial has the benefit of trial by jury, albeit a ‘jury’ of five, rather than twelve.

One of the objections raised by counsel for Defence Counsel Services is that the jury is not a jury of one’s peers – a corporal, tried by GCM, will have a panel of three officers and two NCM not below the rank of warrant officer.  Those are not, technically, peers.

But can that characterization be taken too far?

The same corporal, tried under a civilian criminal justice system for a serious criminal offence would not benefit from a jury comprised of corporals, or even members of the Canadian Forces (at least those of the Regular Force or Reserve Force on Active Service).  Members of the Regular Force or Reserve Force on Active Service are exempt from jury duty[16] and are generally required by their chain of command to assert this exemption.

Other professions will not have a jury of literal peers.  By way of example, in Ontario, police officers tried for serious criminal offences (as distinguished from discipline under a Police Services Act) cannot have a jury of police officers[17].  A lawyer, tried before the Superior Court of Justice for Ontario, cannot have a jury of lawyers[18].

Consider this: the Chief Military Judge, Colonel Dutil, is scheduled to be tried before a court martial this summer[19].  He cannot possibly have a Panel of his peers.  There is express ineligibility for an officer or NCM, who is a lawyer or notary, from sitting on a panel.[20]  This would apply not only to ‘legal officers’, but any officer or NCM who is a lawyer or notary.  There is no express ineligibility for a ‘judge’.  However, even ignoring the interesting argument concerning whether a military judge would be prohibited from sitting on a GCM Panel, there are only four military judges, and, in this matter, one is the accused, and a second is the presiding military judge.  While this could be characterized as reductio ad absurdum, it highlights that a ‘jury of one’s peers’ should not be taken too literally.

For a more mundane example: a school teacher, charged with a serious criminal offence, is not entitled to a jury comprised solely of school teachers.  A farmer, charged with a serious criminal offence, is not entitled to a jury exclusively composed of farmers.

I suggest that the main defect of GCM Panels is not that the Panel members are (or might be) superior in rank to the accused, although that appears to be the principal focus of much of the debate over the past few years.  The more significant issue is the ‘office’ to whom the Panel members themselves are subordinate.  This issue is adjunct to the argument advanced by Defence Counsel Services that a Panel is, in effect, an extension of the Executive.

Although I indicated that these appeals are not about sexual misconduct and Op HONOUR, that has been the focus of much discussion concerning the appeals.  The Chief of the Defence Staff has taken a very public and very aggressive position on sexual misconduct.  While addressing sexual misconduct within the CF is a positive development, the zealous approach to eradicating sexual misconduct that is manifested in a ‘zero-tolerance’ policy can fall victim to exaggeration or a tendency to deviate from evidence-based decision-making.

Zero-tolerance of misconduct (of any form) can be appropriate, but that does not obviate the need for reasoned, rational, and evidence-based decision-making.  The tenor of many pronouncements regarding sexual misconduct in the CF carries the risk that this can be interpreted as an expectation that those who are accused must be guilty.  Anyone accused of misconduct – whether the accused or respondent is civilian or military, and regardless of the type of misconduct – must benefit from a procedurally fair, and evidence-based decision-making regime.  To paraphrase Lord Chief Justice Hewart in R v Sussex Justices, ex parte McCarthy[21]: It is of fundamental importance that military justice should not only be fair, but should manifestly and undoubtedly be seen to be fair.

The Chief of the Defence Staff is briefed regularly on the outcome of Code of Service Discipline proceedings relating to Op HONOUR.  He will be briefed on convictions and acquittals.  Consequently, is there a risk that Panel members, sitting in judgment of another CF member, could be influenced by the knowledge that the Chief of the Defence Staff will be briefed on the outcome of the trial?  Could they be influenced by the knowledge that the Chief of the Defence Staff will be told of their role in acquitting a CF member accused of sexual misconduct, if they are contemplating a finding of ‘not guilty’?  Is it possible that they might fear repercussions on their career?

This is not an issue for which there will be compelling empirical evidence either for, or against, the proposition.  Certainly, there have been a limited number of recent GCM, with a Panel, relating to Op HONOUR in which an accused was acquitted.[22]

But what is undeniable is that the persons who comprise a civilian jury are not employees or subordinates of the party who is placed in charge of the very institution that controls the process.  Ultimately, the Code of Service Discipline is a tool intended to permit the leadership of the Canadian Forces to maintain discipline, efficiency, and morale.[23]  ‘Discipline is a function of command’.  One of the principal goals of any military disciplinary system, is to assist in instilling the ‘habit of obedience’ in military personnel.

The ‘habit of obedience’ is sought in order that soldiers (and sailors, and aircrew) follow the orders of their superiors without hesitation.  While this is a laudable goal, in terms of maintaining efficiency and effectiveness in a military force, it potentially has an ironic negative effect on trial fairness and the role of a Panel in a GCM.

Arguably, in a charge to a Panel, the presiding military judge would clarify that they are to make an open-minded and impartial determination based solely upon the evidence presented before them during the court martial.  However, would that ‘charge to the Panel’ be sufficient to overcome the ‘habit of obedience’ that is purportedly instilled in all CF personnel from basic training onward?  Is it sufficient to overcome fear of subtle and indirect reprisal for daring to acquit an accused?

Such an issue, however, pertains more to the right “… to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal …” under section 11d of the Charter, while the appeals heard on 26 March 2019 focused on section 11f.

 

Prosecutorial Discretion

Finally, one of the concerns that has vexed the CMAC in past cases, and likely vexes the Supreme Court of Canada with the present appeals, is the broad discretion available to the prosecution in determining whether a matter will proceed in the civilian or the military process.

For example, in R v Sgt MacIntyre, mentioned above, military prosecutors allegedly kept the prosecution ‘in house’ at the request of the complainant.[24]

And note what Colonel Bruce MacGregor stated, when interviewed by Murray Brewster on the impact of the Beaudry judgment following the Supreme Court of Canada’s rejection of the Director of Military Prosecution’s motion to suspend the declaration of invalidity in Beaudry[25]:

The interests of victims and survivors remain my highest priority. I will continue to ensure that they are actively informed and consulted in all cases.[26]

Leaving aside the issue of what should be an ‘independent’ prosecutor’s “highest priority”, is it the role of a complainant to choose the appropriate venue?

The decision regarding whether a criminal prosecution of a CF officer or NCM should proceed before a military tribunal or a civilian court is the subject of both broad an unfettered discretion as well as a fair bit of random chance.  There is no specific regime under the Code of Service Discipline that establishes a priority or mechanism for determining whether a civilian or military prosecutor must, should, or will proceed with the prosecution of allegations against a member of the CF.  In fact, one of the key decision-makers regarding which system will be used is the complainant.

For example, if Corporal Bloggins, of CFB Kingston, is alleged to have committed a serious criminal offence against a complainant (regardless of whether the complainant is military or civilian), the complainant has several options available to him or her.  The complainant can tell Cpl Bloggins’ ‘chain of command’.  The complainant can report the allegation to the civilian police.  The complainant can report the allegation to the Military Police.  If there is nothing prohibiting civilian police from investigating, it is likely they will investigate if the complaint is brought to their attention.

Thus, the first decision-maker is the complainant.

Depending on the circumstances, civilian police may liaise with the Military Police to determine which investigators are best placed to investigate.  The best option may not be evident.  In any event, the police comprise the second decision-makers regarding who will investigate, and the choice of investigator will directly impact which process will be followed.

The third decision-makers are the prosecutors.  I suggest however, that if a complainant reports an allegation against a CF member to the Military Police, it is probable that the Military Police will investigate.  If the Military Police investigate, they will invariably refer the file to the military chain of command if they believe they have jurisdiction.  If the chain of command believes that the matter should be prosecuted, it will be referred to Director Military Prosecutions.  And Director Military Prosecutions has signalled that he will prosecute members of the CF whenever he can.[27]

The accused does not get to select whether he or she is prosecuted by military or civilian authorities.

The only constraint placed upon the military prosecutor is that there must be some benefit to the maintenance of discipline, efficiency and morale of the CF, even if tangential.[28] This is very broad discretion.  Thus, the decision whether the accused benefits from a jury comprised of people not subordinate to the Chief of the Defence Staff and the CF ‘chain of command’ is ultimately in the hands of someone whose highest priority is the interests of victims and survivors.

There are several possible solutions before the court.

One would be to impose a more robust ‘nexus test’ such that the military prosecutor must demonstrate that the prosecution of a particular offence is sufficiently ‘military’ in nature because it directly contributes to the maintenance of discipline, efficiency, and morale.  This, I suggest, could lead to repeated litigation of individual cases, and was largely rejected by the Court in Moriarity.

Another would be to uphold the CMAC decision in Beaudry, but to leave it open to Parliament to enact specific legislation to address the issue.  For example, Parliament could enact specific offences under military law that would permit the Code of Service Discipline to apply to those offences.

Plus, either in conjunction with such legislative changes, or independent therefrom, the Court could uphold Beaudry and oblige Parliament to construct a legislative regime that provides more predictable direction to prosecutors regarding who will have primacy of prosecution.  Such polycentric balancing is best suited to a legislature, and not the courts.  However, the legislature will only undertake such innovation if the apex court highlights the problematic tautology of concluding that every offence incorporated by an ordinary statute of Parliament into a military disciplinary regime must, necessarily, be characterized as an offence under military law.

 

[1] R v Déry, 2017 CMAC 2 [Déry]; NB: the appeal in R v Stillman was initially named for the lead Appellant, Private Déry, on behalf of 11 different appellants.  That appellant had withdrawn and the appeal was named for Master-Corporal Stillman, 2017 CMAC 2

[2] R v Beaudry, 2018 CMAC 4 [Beaudry].

[3] RSC 1985, c N-5 [NDA].

[4] Canadian Charter of Rights and Freedoms, s 8, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

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

[6] That said, by virtue of section 70 of the NDA, n3, a service tribunal does not have jurisdiction over murder, manslaughter, or an offence under any of sections 280 to 283 of the Criminal Code, if the offence is alleged to have occurred in Canada.

[7] An Act to Amend the National Defence Act, SC 1998, c 35.

[8] The National Defence Act, 14 Geo VI, c 43.

[9] NDA, n 3, s2 “service offence means an offence under this Act, the Criminal Code or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline”.

[10] For example: Courts of Justice Act, RSO 1990, c C.43, subs 108(4).

[11] Criminal Code, n 5, ss 631 to 634.

[12] Ibid, subs 644(2).

[13] R v Royes, 2016 CMAC 1 [Royes].

[14] R v Reddick, 1996 CanLII 12041, CMAC 393.

[15] NDA, n 3, s 167.

[16] Ibid, s 268.

[17] Juries Act, RSO 1990, c J.3, subs. 3(1).

[18] Ibid.

[19] Office of the Chief Military Judge – Upcoming court martial proceedings: < https://www.canada.ca/en/chief-military-judge/services/upcoming-courts-martial.html>.

[20] NDA, n 3, para 168(a).

[21] R v Sussex Justices, ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233.

[22] For example, R v Sgt MacIntyre: Michael MacDonald, “Military police officer not guilty of sexual assault in case involving superior officer”, (June 28, 2018): <https://www.cbc.ca/news/canada/nova-scotia/military-policeman-acquitted-of-sexually-assault-1.4725775>. Interestingly, there was some critical commentary expressing concern over the (randomly selected) all-male panel: Aly Thomson, “Military panels should have gender parity, advocate says after N.S. acquittal”, (June 29, 2018): <https://www.cbc.ca/news/canada/nova-scotia/military-panels-gender-parity-sexual-assault-acquittal-1.4727703>.

[23] R v Généreux, [1992] 1 SCR 259; R v Moriarity, [2015] 3 SCR 485 [Moriarity].

[24] Keith Doucette, “Military kept alleged sex assault ‘in-house’ at complainant’s request: witness”, (CBC News, June 20, 2018): < https://www.cbc.ca/news/canada/nova-scotia/military-kept-alleged-sex-assault-in-house-witness-1.4714311>.

[25] R v Beaudry, 2019 SCC 2.

[26] Murray Brewster, “Supreme Court rejects bid to block court ruling that left dozens of military prosecutions in limbo”, (January 14, 2019): < https://www.cbc.ca/news/politics/beaudry-military-justice-supreme-court-1.4977510>;

[27] Murray Brewster, “Cases adjourned, charges withdrawn as military struggles with constitutionality of courts martial”, (December 5, 2018), < https://www.cbc.ca/news/politics/court-martial-constitution-supreme-court-1.4934078>. Specifically: “Col. Bruce MacGregor, the director of military prosecutions, acknowledged the uncertainty facing plaintiffs, accused and prosecutors and confirmed that some cases have been adjourned or withdrawn because of the unanswered questions about the jurisdictional reach of courts martial.  He noted, however, that the military has other ways to prosecute in non-violent cases — notably by charging individuals with service offences that carry criminal records. … While MacGregor did not address the Raymond case directly, he did say there is a reluctance in the military justice system to transfer cases to civilian courts because the military then loses control of how, when — or even if — the matter gets prosecuted.”

[28] Moriarity, n 23.