The Military Justice System – Use it or Lose it

 

The recent spate of reporting regarding allegations against various General Officers and Flag Officers (GOFO) of the Canadian Forces (CF) provides us with an opportunity to examine how the Code of Service Discipline – which the Judge Advocate General (JAG) of the Canadian Forces equates to the ‘military justice system’ – is, and is not, used.  In particular, it offers us an opportunity to examine (and, in some cases, revisit) circumstances in which CF decision-makers and others might not be respecting the rule of law, one of the fundamental organizing principles of our constitutional democracy.

There are several distinct issues that I wish to deal with; however, before I do, let’s deal with the elephant in the room.

 

The Elephant in the Room

As some of you will be aware, I am one of the lawyers who represents Admiral Art McDonald, the Chief of the Defence Staff (CDS) who has been placed on leave by virtue of an Order in Council – leaving General Wayne Eyre as Acting Chief of the Defence Staff (A/CDS).

It is not my intention to use this Blog to advocate principally for my client.  If you are an occasional or frequent reader of this Blog, you will likely be aware that I use this Blog to present and discuss principles of military law, and their application in the administration of the affairs of the CF.  To the extent that I use it for advocacy, it is to advocate for the respect for the rule of law and the objective, reasonable, and consistent application of relevant legal principles in the statutory decision-making by which the CF are governed.  Readers of this Blog will likely recognize those recurring themes.

From time to time I rely on material examples that I encounter in the course of advising and representing clients regarding the administration of the affairs of the CF.  However, I am able to rely on those examples in an anonymous and generic manner because many of my clients (and their respective matters) are not the focus of media attention and are, therefore, not in the public eye.

Obviously, in terms of public scrutiny, Admiral McDonald’s circumstances are distinct from that of a corporal or sergeant who retains me for assistance.

However, in my experience, what many of the GOFO are encountering under the glare of news media scrutiny, bears marked similarity to what the ‘rank-and-file’ members of the CF experience in terms of statutory decision-making in the CF, save for the distinction in media scrutiny.  And the rather public nature of allegations against various GOFO allows me to address specific issues pertaining to the administration of the affairs of the CF in a manner that will be comprehensible by the public.

A journalist has suggested to me that I would not be an appropriate commentator on matters pertaining to these GOFO because, as a result of my representation of Admiral McDonald, I would not be a neutral commentator.  That strikes me as odd, since many of the people who have been commenting on these issues have their own biases or agendas.  At least mine are rather transparent.

And, while it is not my intention to advocate on behalf of a specific client, there are aspects of his matter – now in the public domain – that merit commentary not for the sake of advancing his interests, but for the sake of a reasonable and informed discussion of issues of military law that are arising at present.  Some mention of those issues will be unavoidable.

So – I am left with a choice: I can refrain from commenting on these issues, even in general, or I can comment on them, knowing that you, the reader, are informed of that potential bias.

I have chosen the latter, for a couple of reasons.  First, there are very few informed commentators regarding the application of military law.  I started this Blog in 2019 to remedy that lacuna, and to assist in educating the public and members of the CF.  Second, there is a fair degree of what I perceive as errors or, worse, misinformation, regarding many of these issues.  And I cannot, in good conscience, stand by and watch that continue.

And, frankly, Dear Reader, even if you only occasionally peruse this Blog, none of what I have to say in the present post will come as a surprise to you.  I discuss, and apply, the same principles and doctrine that I discuss and apply when I examine how the application of military law affects junior members of the CF.  I suggest that the content of this Blog has consistently been about the principled and reasonable application of public law.  The present post is no different.  And I will leave it to you, Dear Reader, to draw your own conclusions whether I have presented my argument in an objective, reasonable, and principled manner.

 

Scope of Issues

I intend to discuss the following pertinent issues:

1. The independence of the Military Police;
2. The failure to use appropriate legislative mechanisms; and
3. The importance of respect for the rule of law.

 

Military Police Independence

Readers of this Blog will be aware that I do not hesitate to criticize the Military Police.  Their investigations take far too long, which adversely affects the rights and interests of both accused and complainants.  Their investigative summaries – which are often the principal ‘evidence’ used in conduct-related Administrative Reviews under Defence Administrative Order and Directive (DAOD) 5019-2 – are not objectively drafted and do not tend to summarize fairly both inculpatory and exculpatory evidence that they have gathered.

But one criticism that you have not heard from me is a lack of independence.  And for good reason: Military Police, particularly the Canadian Forces National Investigation Service (CFNIS), have the necessary investigative independence to perform their duties and functions.  They certainly enjoy flexing their ‘independent’ muscles at every opportunity.

Previously, in this Blog, I have explained the nature of independence, including that the term lacks a great deal of meaning without asking two critical questions: From whom?  To what extent?  Consider the following Blog posts:

A Word or Two About the DND/CF Ombudsman

Some Observations on Recent Developments in the Canadian Forces

What could the Minister of National Defence have investigated?

Whither the DND/CF Ombudsman?

(It’s) the Impunity, Stupid

 

Independence can be perceived on a sliding scale.  Neither civilian nor military police possess a level of independence analogous to ‘judicial independence’ (security of tenure, security of remuneration, and institutional independence).  But they do possess the necessary institutional arm’s length relationship from policy-makers to benefit from investigative independence.

I have explained this previously (see, in particular, my comments about Military Police in (It’s) the Impunity, Stupid); however, it appears that the logic of that explanation has not sunk in with select news media and commentators.  So, I will offer a couple of object examples of why I am confident that my previous analysis is correct.

First, when the National Defence Act (NDA) was amended in 1998, one of the arm’s length tribunals created was the Military Police Complaints Committee (MPCC).  Among its statutory functions, the MPCC has the jurisdiction to hear what are characterized as ‘Interference Complaints’.  These are complaints brought under s 250.19 of the NDA by Military Police if they believe that any officer or non-commissioned member (NCM) of the CF, or any official of the Department of National Defence (DND) has improperly interfered with a Military Police investigation.

‘Interference complaints’ differ from ‘conduct complaints’ under section 250.18 of the NDA – i.e. complaints about the conduct of Military Police.  The first level of review of ‘conduct complaints’ is the Canadian Forces Provost Marshal (CFPM).  However, the first level of review for an ‘interference complaint’ is the MPCC (although the Chairperson of the MPCC possesses the discretion to ask the CFPM to investigate certain ‘interference complaints’).  Upon completion of an investigation by the MPCC, the Chairperson will provide a report to the Minister, the CDS, the Deputy Minister, the JAG, and the CFPM, for appropriate action.

Have a look on the MPCC website for case summaries regarding past interference complaints.  There are no earth-shattering examples of interference with their independence.  What complaints there are, are infrequent.  Moreover, the very existence of this process acts as a deterrent to interference.

My second material example of the confidence that I have in my conclusion is even more compelling: when was the last time you heard of an application from Defence Counsel Services challenging the fairness of a prosecution based upon interference in a Military Police investigation?

Readers of this Blog will be aware that I occasionally voice support for the legal officers at Defence Counsel Services (DCS).  This is not simply a manifestation of a kindred spirit of a fellow ‘defence counsel’.  Rather, it is about the role that they play.  The lawyers at DCS represent the CF personnel prosecuted at courts martial as well as other ancillary duties under the Code of Service Discipline.  One of their principal roles is to assist an accused in testing the evidence presented by the prosecutors of the Canadian Military Prosecution Services (CMPS) under the direction of the Director of Military Prosecutions (DMP).

I know many of the officers in both DCS and the CMPS.  I have worked with many and appeared opposite others.  Military prosecutors and defence counsel alike are skilled practitioners.  And we can have confidence in the judgments at court martial because we know that the counsel at DCS test the prosecution’s evidence rigorously.[1]

And the counsel at DCS also test the legislative structure of the Code of Service Discipline rigorously: e.g. Beaudry v R, 2018 CMAC 4; R v Stillman, 2019 SCC 40; R v Edwards, et. al., 2021 CMAC 2; R v J.L., 2021 CM 2004.

Thus, when some people excitedly proclaim the demise of the Code of Service Discipline every time an application by counsel from DCS succeeds, I tend to roll my eyes at the hyperbole.  What we are seeing with each application is DCS counsel subjecting the Code of Service Discipline to the sort of rigorous and exigent testing to which we subject our troops when preparing them for operations.  Just as we can have confidence in our troops to fulfil the mission when we have subjected them to rigorous testing and evaluation, we can have confidence in the Code of Service Discipline when counsel from DCS subject it to rigorous scrutiny under (among other factors) the Canadian Charter of Rights and Freedoms (Charter) before constitutionally independent judges.

And those of you who have been following these Charter challenges will be aware that, ultimately, those challenges fail more often than they succeed.  If anything, this ought to instill confidence in the Code of Service Discipline – when it is used (but more on that later).

For the purposes of our discussion regarding the independence of Military Police, permit me to posit the following:  First, unlike private counsel like me, the lawyers at Defence Counsel Services are mandated to provide services to a CF member, prosecuted before a court martial, free of charge.  Where an accused retains private counsel before a civil court of criminal jurisdiction (or even a court martial) and brings a Charter application similar to the type brought by DCS, it could easily cost that person $25,000, $50,000, or more in legal fees.  They do not face that same burden when represented by DCS before a court martial.[2]

Second, as you can likely surmise, the counsel at DCS will bring Charter applications where they believe they have a reasonable basis to challenge any functions under the Code of Service Discipline.  They may bring such applications where there is a case-specific breach of the Charter such as unreasonable arrest, unreasonable search and seizure, or a deprivation of a suspect’s right to silence.  But they can also bring applications where they perceive that the legislative structure is inconsistent with the Charter.

When was the last time that you heard of any defence counsel before a court martial challenging the independence of the Military Police, let alone doing so successfully?

I’ll save you the trouble of conducting the research: it hasn’t happened in recent memory.

At this point, someone might point to one or more of the conclusions from Justice Morris Fish in the Third Independent Review of the NDA and assert: “A-ha! But Justice Fish said that the Military Police are not sufficiently independent.”

First, that isn’t actually what Justice Fish concluded.  Second, as Justice Fish acknowledged in his report, his recommendations are not intended to meet the minimum Charter threshold.  They are, in effect, aspirational.  There are a number of things that could be done to improve the administration of the Code of Service Discipline.  But ‘room for improvement’ does not equate to a fatal or unreasonable flaw in a system.  And most of Justice Fish’s recommendations on this issue related to the MPCC, rather than Military Police (and many of those recommendations appear to have been prompted by advocacy from the MPCC).

The reality is that no one has yet pointed to any concrete examples of a ‘failure’ of independence that has led to a miscarriage of justice for either an accused or a complainant.  And, to be clear, not getting a desired result from an investigation or prosecution is not evidence of such failure.  All we have read, time and again, are general assertions of purported adverse interference, unsupported by any reasonable analysis or evidence that has been tested in even a rudimentary manner.

 

Failure to Use Appropriate Mechanisms

While the Code of Service Discipline – like any statutory mechanism – can be improved, that does not mean that it is not fit for purpose.  But the effectiveness of a statutory process like the Code of Service Discipline is markedly reduced if it is not used or is not used in the manner in which it is designed.  That has been a common theme repeatedly presented in this Blog, and the circumstances of the GOFO discussed regularly in the national news media present some telling examples of: (1) improper relief from performance of military duty; (2) failure of decision-makers to adhere to their obligations as statutory decision-makers; and, (3) improper substitution of administrative processes for disciplinary prosecution.

Allegations of wrong-doing under either the Criminal Code or the Code of Service Discipline (which incorporates offences under the Criminal Code and other Acts of Parliament) have been brought against many of those GOFO.  In a couple of cases, no allegations of criminal or disciplinary wrong-doing have been alleged, although those GOFO have been publicly vilified for what is generally lawful conduct.  However, it appears that someone – whether it was the A/CDS, the Minister, or the Prime Minister – believed that those officers should be relieved from performance of military duty.

How many of those GOFO were actually relieved from performance of military duty in accordance with law?

Again, I will save you the trouble of researching it.  Based upon what has been reported (and, admittedly, some reporters in the national news media have demonstrated frailties in their reliability), none of those officers were properly relieved from performance of military duty under existing legislative provisions.  The same appeared to be the circumstance back in 2017 when (then) Vice-Admiral Norman was ‘kind-of-but-not-really’ relieved from performance of military duty: The Poorly Understood Act of ‘Relief from Performance of Military Duty’; Some Observations on Recent Developments in the Canadian Forces.

In all of those instances, the GOFO in question were de facto, but not de jure, relieved from performance of military duty.  It was announced that they were ‘on leave’ – often characterized as being placed on ‘administrative leave’.  (And here’s a tip: ‘administrative leave’ is like ‘grave danger’ – to paraphrase the fictional ‘Colonel Nathan R. Jessup’ from A Few Good Men: “Is there any other kind?”)

And that should be of concern to all of us, because there are express mechanisms created in the Queen’s Regulations and Orders for the Canadian Forces (QR&O) for these very circumstances.  If an officer or NCM: (a) is believed to have committed an offence under an Act of Parliament or of a provincial legislature, and an investigation has commenced; (b) is charged with an offence referred to in subparagraph (a); or, (c) has been found guilty of an offence referred to in subparagraph (a) but is not undergoing a punishment of detention or imprisonment, the officer or NCM may be relieved from performance of military duty under article 101.09 of the QR&O.

Similarly, even if an officer or NCM is not alleged to have committed an offence described above (i.e. it is a situation other than one described under article 101.09(3) of the QR&O), but ‘an authority’ considers that it is necessary to relieve the member from the performance of military duty to separate the member from their unit, the ‘authority’ (the CDS or an officer with the powers of an officer commanding a command) may relieve the officer or NCM from performance of military duty under article 19.75 of the QR&O.

Of course, then the decision-maker would have to follow the steps outlined in either article 101.09 or 19.75 of the QR&O.  While it is clear that those GOFO have been separated from their units or commands, typically indefinitely, it does not appear that those legislated steps were followed for any of the GOFO in question.  Certainly, it was a central issue in the application for judicial review brought by MGen Fortin.  So much for the rule of law.

So, if were talking about things that are ‘shocking’, I find it particularly shocking that statutory decision-makers are not using the legislative mechanisms that exist for that very specific purpose.

I suspect the troops may be asking why they should care about what happens to a bunch of ‘privileged’ GOFO; and I can understand that sentiment.  After all, in the rather legally one-sided nature of the Crown-soldier relationship, in which “… a person who joins the Forces enters into a unilateral commitment in return for which the Queen assumes no obligations, and … [which] … in no way give rise to a remedy in the civil Courts …”[3] the troops will often feel at the mercy of unreasonable statutory decision-makers.  I suspect a not-insignificant number of troops may even delight in seeing some senior officers get their comeuppance.  (Although, I doubt most of the troops would use the term ‘comeuppance’.)

But the very public example of the treatment of these GOFO permits me to illustrate similar injustices that are visited upon the troops.  These GOFO are not the only CF personnel who are, in effect, relieved from performance of military duty, but without the safeguards of article 101.09 or 19.75 of the QR&O.  It happens, with increasing frequency, across a range of personnel.  And the circumstances discussed in public represent the proverbial ‘tip of the iceberg’.

The problems I see on a regular basis are not with the legislative and policy mechanisms available to CF statutory decision-makers.  The defects are largely in the failure by statutory decision-makers to use the processes available to them, or the improper and unreasonable use of certain mechanisms.

I have regularly encountered officers and NCM who are entitled to receive a ‘Notice of Intent to Recommend Release’ under article 15.21, 15.22, or 15.36 of the QR&O, but who do not receive such obligatory notice.  However, the Administrative Review (AR) under DAOD 5019-2 will continue anyway.  After all, the focus of such AR is on the subject member’s failure to follow the rules, not the failure of the statutory decision-maker to follow the rules: Rules are for Corporals, Not for Colonels.

And, speaking of AR, I regularly encounter ‘prosecution by AR’.  In other words, a disciplinary investigation will be conducted, often by the Military Police, sometimes by the CFNIS.  But no charges are laid.  Instead of a Code of Service Discipline proceeding, the subject of the investigation – I suppose I cannot really call him or her an ‘accused’ – is then subjected to an AR, typically leading to a recommendation for compulsory release, regardless of whether the CF member has ever been subject to prior remedial measures or any other intermediate corrective action.

Here’s what I find puzzling about many of those AR: if there is sufficient evidence to conduct an AR for alleged breach of one or more regulations or policy directives, then wouldn’t there be sufficient evidence for a prosecution under the Code of Service Discipline?  Particularly under section 129 of the NDA for an act or conduct prejudicial to good order and discipline?  After all, unlike AR, a proceeding before a disciplinary tribunal (whether a Presiding Officer or a court martial) actually has the capacity to weigh and examine conflicting evidence.  The accused has a fair opportunity to make full answer and defence.  And the tribunal has a far more robust capacity to evaluate the reliability of all evidence before it than does an AR ‘paper hearing’: The Nature and Limitations of Administrative Review.

What’s more, many of the allegations ‘examined’ by an AR are characterized in terms of ‘harassment’.  The problem is that the CF policy on harassment prevention and resolution – DAOD 5012-0, amplified by the CF Harassment Prevention and Resolution Instructions – is almost never used to investigate such claims, even though that policy exists for that very purpose.  And while it is not as robust an adjudicative process as a disciplinary tribunal (particularly a court martial), the CF Harassment Prevention and Resolution policy is far better suited to such adjudications than an AR.

And, where statutory decision-makers choose to proceed administratively, rather than under the Code of Service Discipline, CF personnel have a legitimate expectation that the administrative process created to investigate and adjudicate allegations of harassment will actually be used for its intended purpose.  However, for most such allegations, it is not: The Right Tool for the Job:  Administrative Review is neither a Code of Service Discipline prosecution nor an Harassment Investigation.

Instead, CF decision-makers rely on disciplinary investigations – or more accurately, the summaries of disciplinary investigations (the subject of AR are almost never provided with anything remotely resembling full disclosure) – to support administrative decision-making under an AR in some sort of ersatz hybrid disciplinary-administrative process that is not designed to perform an adjudicative function where there is contested evidence.

I have had occasion to comment on the disingenuous use of administrative processes as ersatz disciplinary prosecutions both in this Blog and in my work advising and representing CF personnel.  Frankly, it arises far too frequently in the latter circumstances.  And while the purpose of my Blog generally, and this Blog post specifically, is not to advocate on behalf of specific clients, some comments have arisen in the context of Admiral McDonald’s circumstances, which are illustrative of misconceptions in the administration of the affairs of the CF, which are relevant to all CF personnel.  So, perhaps, Dear Reader, you will permit me to delve into a specific matter that has been the subject of public commentary.

According to a Global News report[4], Lieutenant-General (LGen) Mike Day (retired) wrote in his own Blog:

Contrary to the Admiral’s claim and the start point of his argument, a failure to press charges, for whatever reason is not an exoneration, neither in form nor function. A decision not to proceed based on insufficient evidence neither exonerates nor condemns.

 

Of course, he was also quick to observe that he is not a lawyer (although, coincidentally, his father, Sir Graham Day, was, at one time, the Colonel-Commandant of the Legal Branch of the Canadian Forces).

An even more troubling comment was offered by Charlotte Duval-Lantoine, a fellow with the Canadian Global Affairs Institute:

They could not meet the burden of proof to charge Art McDonald. That doesn’t mean that the allegations were false.

 

These comments are relevant not just to Admiral McDonald, but to any CF member who stands accused of misconduct, and where CF statutory decision-makers choose not to proceed with a prosecution under the Code of Service Discipline or a criminal prosecution before a civil court of criminal jurisdiction.  And both comments are problematic.

LGen Day (retired) may not be a lawyer, but I am; so let me break down the relevant issues and elements, and apply them in a general sense.

The above-noted comments are problematic because the relevant processes – prosecution in the civil criminal process or the Code of Service Discipline – are not designed to ‘prove innocence’.  Anyone suggesting that an investigation “… did not prove someone’s innocence …” is being disingenuous.  And whether someone is an Admiral or a Killick, a General or a Corporal, a journalist, an academic, or a lawyer – anyone can be accused of wrong-doing.  And speculation of guilt based upon an allegation, absent any tested evidence, is highly problematic.

As I have explained previously, the ‘presumption of innocence’ is not absolute.  It does not represent a belief that all people are inherently innocent. It is a legal principle intended to assign an evidentiary onus or burden.  Where public powers are exercised, that onus typically lies on the Crown or the public authority.  The nature or threshold of the onus may vary – ‘beyond a reasonable doubt’ in criminal and Code of Service Discipline proceedings; ‘balance of probability’ in administrative decision-making – but it is placed on the public actor who seeks to affect the rights, interests, or privileges of a subject of such public powers or functions.  In Canada, governed under (among other principles) respect for the rule of law, we don’t presume guilt.

In the Canadian Forces, disciplinary investigations are conducted by members of the chain of command or by the Military Police in order to identify evidence regarding a complaint of criminal or disciplinary misconduct.  The evidence could be inculpatory (tending to establish guilt) or exculpatory (tending to establish an absence of guilt).  And, practically, I think most of us will assume that the Military Police will tend to focus on the former (although, an open-minded investigator will, well, keep an open mind regarding the latter).

The principal purpose of such investigations is to gather evidence that can be used in a disciplinary proceeding or a criminal prosecution.  Technically, such evidence can also be used in an administrative proceeding, but the Military Police investigation is not a substitute for an inquisitorial administrative investigation such as would be conducted under the CF Harassment Prevention and Resolution Instructions and DAOD 5012-0.

Moreover, if used in a disciplinary or criminal prosecution, all relevant evidence gathered in the investigation would be disclosed to the accused unless disclosure was exempted under one or more narrowly construed lawful exemptions.

When the investigation is complete, a potential charge layer – whether that is an officer or NCM of the CFNIS, a CO, or a person authorized by a CO to lay a charge under the Code of Service Discipline – will review the evidence and consider whether a charge could be laid.  The same is true is a charge is laid by a ‘Peace Officer’ before a civil court of criminal jurisdiction.  And this is where Ms Duval-Lantoine gets the law fundamentally wrong.  The issue is not whether the evidence would meet the criminal burden of proof.  In fact, it would be improper for the charge layer to purport to usurp an eventual tribunal’s role in such function.

The charge layer faces a very low threshold, which is typically described as a reasonable and probable belief (or grounds) that an offence has occurred.  That is a very low threshold.  All it requires is some evidence of each element of an offence that, on its face, appears to be true.  That is lower than the ‘infamous’ civil burden of proof (‘balance of probabilities’) upon which administrative adjudication is conducted in the CF.  And that is because the evidence is not actually tested or evaluated, other than to examine it on its face – i.e. a ‘prima facie’ case.

So, if charges aren’t laid, that very likely means that the evidence did not meet even this low threshold.  And, if an investigation takes several months (as most Military Police investigations take) and canvasses multiple witnesses, if there are grounds for charges, it’s not going to be too difficult to meet this threshold.

Arguably, some people might suggest that potential charge layers, in consultation with prosecutors from the CMPS, will apply the slightly higher threshold of ‘reasonable prospect of conviction’.  This is the threshold that prosecutors apply in their two-part analysis about whether to proceed with a prosecution.  That two-part analysis consists of: (1) is there a reasonable prospect of conviction; and, (2) is it in the public interest to proceed with the prosecution.  In light of the concerns about sexual misconduct in the CF, where a CF member is accused of sexual misconduct, I suggest that the second part of that test will almost always be met.

So, how do we describe ‘reasonable prospect of conviction’?  Well, here’s how DMP defines it in DMP Policy Directive 002/00 Pre-Charge Screening:

1. 30. The threshold test of “reasonable prospect of conviction” is objective. This standard is higher than a “prima facie” case that merely requires that there is evidence whereby a reasonable jury, properly instructed, could convict. On the other hand, the standard does not require “a probability of conviction”, that is, a conclusion that a conviction is more likely than not.

1. 31. A prosecution is not legally sustainable unless there is evidence to support the accusation that a person subject to the CSD has committed a service offence. In the assessment of the evidence, an actual and reasonable belief that the offence has been committed is necessary but not sufficient. The evidence must be evaluated to determine how strong the case is likely to be when presented at any service tribunal and should be made on the assumption that the trier of fact will act impartially and according to law. This will require a proper assessment on whether all of the elements of the alleged offence have been established, the relevance and admissibility of evidence implicating the accused, as well as the competence and objective credibility of witnesses.

1. 32. Prosecutors are required to consider any defences that are plainly open to or have been indicated by the accused and any other factors that could affect the reasonable prospect of a conviction, for example, the existence of a potential Charter violation that may lead to the exclusion of evidence. [footnotes omitted]

 

Again, that is not a high threshold.  And this applies not just to prosecution of GOFO, but to the prosecution of all CF members.

So, if the CFNIS state that there was insufficient evidence to lay a charge against a CF member, that means a very low threshold was not met.  And I would suggest that, in a high profile case, concerning allegations of sexual misconduct, DMP and the CFNIS would be motivated to lay a charge even on the thinnest of evidence.  They have done so before: Why is DMP bringing prosecutions and appeals without merit?

And, while the purpose of this Blog post to not to advocate on behalf of a specific client, there was a rather disingenuous comment in a recent report by Global News that I am loathe to let pass.  (I am a Patricia, not RCR, but the adage ‘never pass a fault’ still resonates with me).

When discussing Admiral McDonald’s circumstances, Amanda Connolly (with files from Mercedes Stephenson), stated:

Former Supreme Court Justice Morris Fish warned in June that it is “legally impossible” to charge senior military officials of McDonald’s rank under the military justice system.

 

Ms Connolly appears to be intimating or insinuating that a charge or charges were not laid against Admiral McDonald because it would not have been possible or practical to prosecute him under the Code of Service Discipline.  That is disingenuous reporting for a variety of reasons.

First, that is not what the CFNIS stated.  They clearly stated that there was insufficient evidence to lay a charge.  Ms Connolly knows this, as she had reported it previously.  That can be distinguished from the announcement when General Jon Vance (retired) was charged, and the CFNIS clearly stated that Vance was charged under the civil criminal justice system because of the impracticality of prosecuting him under the Code of Service Discipline.

Second, even if the statement were true in its entirety, that does not bar laying charges under the civil criminal justice system, as has been done with Major-General Fortin and General Vance (retired).

Third, Ms Connolly also mischaracterizes Justice Fish’s conclusion.  And I ought to know, since I was one of the people he cited when drawing that conclusion.  At para 462 of his Report, justice Fish stated:

The JAG, Lieutenant-Colonel (retired) François Lareau, Lieutenant-Colonel (retired) Rory G. Fowler and other participants in my review have all raised concern over the fact that subsection 167(4) of the NDA does not allow the Chief of the Defence Staff (“CDS”) to be tried by general court martial. The CDS is at all times the only active member of the Canadian Armed Forces holding the rank of general or admiral. The senior member of the panel can never be of or above the rank of the CDS. [emphasis added]

 

Accuracy in reporting legal issues is as important as accuracy in legal advocacy.  It would be practically impossible to prosecute a CDS by General Court Martial.  The same is not true of a Standing Court Martial, in which there is no Panel, and which is presided over by a military judge alone.[5]  As I explained in a Blog post in February 2021, the issue of practicality arises where very senior accused has a right to elect trial by General Court Martial: Prosecuting the Chief of the Defence Staff.

What I will say about Ms Connolly’s and Ms Stephenson’s reporting, is that the only reason I am aware of any particulars of the allegations against my client, is because of their reporting of selective information.  No CF decision-maker has provided us with any information.  But, based upon what Ms Connolly and Ms Stephenson have reported, if there were sufficient evidence to support a charge (and the Canadian public has been told that there is not) then one potential charge would be ‘Ill Treating a Subordinate’ contrary to section 95 of the NDA.  The maximum punishment for such an offence is ‘less than two years imprisonment’ and, therefore, does not give rise to a right to elect trial by General Court Martial pursuant to section 165.192 of the NDA.

In other words, not only is the insinuation disingenuous; it’s also incorrect.

And as I have repeatedly explained in this Blog, CF personnel – particularly junior personnel – are often subjected to problematic ‘prosecution by AR’ where charges are not laid under the Code of Service Discipline.  Clearly, the use of AR as an ersatz disciplinary tool is problematic in terms of fairness to the subject of the AR.  Perhaps I am overly concerned about fairness.  After all, according to the Minister of National Defence, Harjit Sajjan (for the time being in any event), we must “… put survivors and victims of sexual misconduct first.”

It is a laudable goal to emphasize the importance of supporting victims and survivors.  However, that support does not arise in a vacuum.  Both General Eyre and Harjit Sajjan have recently rushed to emphasize the importance of the constitutional principle of civilian control of the military.  That’s never been in doubt.

But, since General Eyre and Mr. Sajjan raise the issue of constitutional principles, let’s take a moment to examine the rule of law, one of the fundamental principles by which a constitutional democracy such as ours is governed.  One of the facets of the rule of law relevant to statutory decision-making is the importance of procedural fairness.  That incorporates the importance of evidence-based decision-making, respect for legitimate expectations in the use of legislative regimes (and policy regimes created under legislated powers), transparency in the exercise of powers, and reasonable and justifiable decision-making.

And we have not seen a great deal of that regarding the decisions that affect GOFO.  And that deficiency has also repeatedly arisen regarding decisions that affect junior CF personnel – the difference is that there has not been much, if any, media attention concerning failures of fairness affecting junior personnel.

Ensuring support for victims and survivors involves the proper and reasonable use of statutory mechanisms to address the alleged misconduct.  If the proper mechanisms are not used, or mechanisms are used improperly, it does not serve the needs of military justice and fails to respect the rights, interests, or privileges of both complainants and accused.

If mechanisms are used improperly, the decisions are vulnerable to being overturned.  Increasingly, ill-suited administrative mechanisms are being used for disciplinary purposes.  As ‘administrative decisions’ (i.e. decisions other than under the Code of Service Discipline), the process by which such decisions are challenged will typically be the CF grievance process.  As most of us are aware, that will often take a great deal of time.  And further grievances will continue to clog the system.  And, where decisions are procedurally unfair or unreasonable, the ‘redress authorities’ in the CF grievance process will have to correct those decisions or face potential judicial review.

But that is not the only shortcoming of improperly substituting administrative processes for disciplinary prosecution.  A prosecution under the Code of Service Discipline (or under the Criminal Code before a civil court of criminal jurisdiction) is generally public.  Safeguards exist to protect the identity of young persons, complainants and witnesses in prosecutions for sexual misconduct, and even for the interests of national security.  But, generally, prosecutions are public.  In addition to contributing to transparency and fairness, the public nature of such prosecutions enables these processes to serve the needs of general deterrence, denunciation, and to promote a sense of responsibility within the community.  Specific to ‘military justice’, the additional objectives of promotion of the ‘habit of obedience’ and maintenance of public trust in the CF are also served by the public nature of sentencing under the Code of Service Discipline.  Those ends are not served by administrative mechanisms, which are not conducted publicly, and the results of which are not promulgated publicly in the same manner as Code of Service Discipline prosecutions.

These are just a few of the many reasons why a proper prosecution before a lawfully constituted tribunal is the appropriate course of action.  They also illustrate why it is vastly superior to a trial by a Star Chamber, or ‘Trial by Media’ which has no safeguards for fairness or reliability.

So, again, what I find shocking is the repeated use of administrative processes as improper substitutes for disciplinary processes.  If there is sufficient evidence to support the administrative processes – which CF statutory decision-makers consistently assert – then why are they not bringing prosecutions under the Code of Service Discipline in many of these cases, since the threshold for laying a charge and prosecuting that charge is actually lower than a balance of probabilities?  Reliability of evidence is distinct from the burden of proof that is employed by a particular tribunal.  If the evidence is not reliable for a prosecution under the Code of Service Discipline, why would it be reliable for an administrative process?

The repeated failure to use the Code of Service Discipline in the manner for which it was intended is not representative of a defect in the legislative regime.  It demonstrates a defect in decision-making.  As I have suggested in this Blog before, it is suggestive of a desire to avoid subjecting evidence and any corresponding legal argument to the independent scrutiny of a military judge.  It is suggestive not of a weakness in the regime, but a weakness in the evidence, and a weakness in the resolve of the statutory decision-makers.

 

Respect for the Rule of Law

As I indicate above, Canada is a constitutional democracy where decision-making by public actors is governed by the rule of law.  In the context of the CF and DND, that applies to everyone, from junior troops, to officers, to GOFO, and even to the Minister and Prime Minister.  Unfortunately, we do not hear a lot about the rule of law and its constituent elements, save where cherry picking such elements might suit a particular person.

The Prime Minister asserted that military commanders “… just don’t get it …” when it comes to sexual misconduct.  Frankly, I find that a bit hypocritical from Mr. Trudeau, and I suspect that I am not alone in that view.  After all, Mr. Trudeau was, himself, accused of sexual misconduct.  If accusation alone is sufficient to disqualify someone from exercising public leadership, why did he not step down?  Of course, he infamously stated that, perhaps, people experience things differently.  And, as he is not a member of the Canadian Forces, he is not subject to the same asymmetrical and coercive statutory decision-making to which all CF personnel are subject.

Now imagine how Mr. Trudeau would have reacted if a GOFO or a more junior CF member had offered such an excuse in response to allegations.

After all, as the Governor in Council recently stated in an Order in Council, “… Governor in Council appointees have an obligation to act in a manner that will bear the closest public scrutiny, an obligation that is not fully discharged by simply acting within the law …”.  Presumably that would apply, too, to the Governor in Council as well.  After all, one ought to lead by example.

And did Minister Sajjan act in a manner that would bear close public scrutiny, and in a manner that placed victims and survivors first, when he turned his back on his Ombudsman in March 2018 when the Ombudsman attempted to bring a serious matter to the Minister’s attention?

Was the rule of law respected when various GOFO were, in effect, relieved from performance of military duty, but not in accordance with the express legislative mechanisms designed for that very purpose?

Is the rule of law respected when junior members of the CF are subjected to abuses of process, based upon allegations that are not adjudicated in fair and reasonable processes, particularly when the processes that are used are not designed for, and capable of, weighing conflicting evidence?  Is the rule of law respected when administrative mechanisms are substituted for disciplinary prosecution?  Where CF statutory decision-makers opt for using administrative processes, is the rule of law respected when those decision-makers use ‘alternative’ adjudicative mechanisms rather than the proper administrative processes, which CF members have a legitimate expectation will be followed?

Is the rule of law respected when personal information or information pertaining to Military Police investigations is leaked?  Is the rule of law respected when this happens over and over, and there are no apparent steps taken to investigate those leaks?

While I share the Minister’s concern for victims of sexual misconduct, I suggest that this is not the only concern that is vital, at present, in the administration of the CF.  There has been a noticeable deterioration for the respect for the rule of law over the past few years.

As the national news media cover these issues, there is consistent mention of the current review being conducted by Justice Arbour and her team, and many are waiting for the result of that inquiry.  And while some people like the Minister of National Defence or Ms Duval-Lantoine take refuge in overly simplistic sound-bites in the hopes that they will be attractive to reporters like Ms Connolly and Ms Stephenson, the administration of justice is not so simplistic.  And we can be confident that Justice Arbour will not take as simplistic an approach to the challenging analysis before her.

And that is because an experienced jurist like Justice Arbour understands that any system of justice must have procedural fairness and it must have balance – both of which have been sorely lacking in much of the public discourse on these issues.  Decision-making must be based upon evidence that is sufficiently and adequately tested to make factual determinations with confidence.  And that is not unique to a criminal justice system or the Code of Service Discipline.  It is true of any adjudication under statutory powers.  The nature of a specific process will vary based upon the rights, interests, and privileges as stake, but regardless of process, it will be driven by these key principles.

Complainants must perceive that they may bring complaints forward in a secure manner, and that investigators will treat these complaints seriously.  But that does not mean that the complaints must be treated as proven from the outset.  It is as unproductive to assume guilt as it is to assume that a complaint is unfounded.

An accused or respondent must be given an opportunity to make full answer and defence before an open-minded, informed, and sufficiently independent decision-maker.  And the nature and degree of independence of that decision-maker will be driven by the nature and powers of the tribunal over which the decision-maker presides.  That means that the evidence brought against the accused or respondent must be disclosed and he or she must be given an opportunity to respond before the appropriate decision-maker.

We do not use Star Chambers in Canada, and for good reason.  They are not fair; they are not reasonable.  They are not just because they do not respect the rule of law.  Nor do we try people in the court of public opinion or before the media.  Trial by media can be problematic, particularly where a journalist proposes to act as advocate for a complainant as well as judge and jury.  The merit of ‘trial by media’ is further hampered when information is limited to presented in a selective fashion.

Many commentators resort to suggesting that the Code of Service Discipline or Military Justice system is ‘broken’.  However, the current functioning of the Code of Service Discipline belies that broad assertion.  Rather, I contend that the principal problem with the Code of Service Discipline is the failure of key statutory decision-makers to apply it where it is warranted and to apply it properly.  This is further aggravated by the improper substitution of administrative processes as ersatz disciplinary processes and the consequent abuse of process that ensues.

That is what I find to be shocking.

 

[1] And lest someone posit that “… if we could have confidence in those judgments, how come there are so many appeals, and some appeals which over-turn judgments at first instance …?”, let me just stop you there.  The process of appeal is one of the mechanisms that provides confidence in our processes. Appeals represent a quality control mechanism, both in the civilian justice system and the military justice system.

[2] And lest someone bemoan the fact that this lack of financial barrier – which tends to arise in the civil criminal justice system – gives the accused an ‘unfair’ advantage, the prosecutors in the CMPS also have an advantage distinct from their civilian counterparts.  There are approximately 16 to 18 Regular Force legal officers in the CMPS.  There are approximately 65 to 70 courts martial a year.  Their workload is markedly lighter than their civilian counterparts.  Just as the accused benefits from a ‘Cadillac defence’, the Crown benefits from a ‘Cadillac prosecution’.

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

[4] Amanda Connolly, “Adm. Art McDonald letter to senior military officials ‘shocking,’ says Gen. Eyre”, (15 October 2021), online: Global News <https://globalnews.ca/news/8268979/canadian-forces-sexual-misconduct-art-mcdonald-probe-letter/>.

[5] National Defence Act, RSC 1985, c N-5, s 174.