The Year that Was & the Year that Will Be

 

Happy New Year.

The end of 2022 and the beginning of 2023 offers an opportunity to reflect on developments in the administration of the affairs of the Canadian Forces (CF) and military justice over the past year and to examine emerging issues for the coming year.  In the present Blog post, I shall offer a brief summary of both.  Although, if you are a frequent reader of this Blog, you may be excused for raising an arched eyebrow at the use of the term ‘brief’.  Your humble scribe will not take offence.

In the passages that follow, I will summarize some of the key issues and developments that we discussed over “the year that was” and will elaborate on some of the key principles and observations that I have raised in previous blogs, augmented by some additional commentary.

I will then turn my attention to “the year that will be” and will highlight what I believe will be some of the key developments and issues to look for in 2023.  By way of full disclosure, I will be involved in some pertinent litigation in the coming months directly related to the administration of the affairs of the CF and military justice.  However, I will not bore you with my prognostication on what will arise with those specific matters.  Rest assured, however, that, as those matters culminate, I will offer pertinent observations.

In particular, when discussing the issues that might arise in the coming year, I will focus on the important, and as-yet-unresolved, issue of the Application for Leave to Appeal the Court Martial Appeal Court (CMAC) judgment in R v Edwards; R v Crépeau; R v Fontaine; R v Iredale, 2021 CMAC 2 [R v Edwards, et al], which remains before the Supreme Court of Canada, and for which we have been waiting upon a decision for most of 2022.

 

The Year that Was

There were several developments in military law in 2022, including, but not limited to:

• The implementation of the policy direction from the Minister of National Defence (MND) that all allegations of criminal misconduct of a sexual nature arising within the Canadian Forces (CF) would be investigated and prosecuted by civil authorities: The MND’s New Policy and the Rule of Law, 19 November 2021.
• The implementation of the CF’s COVID-19 Vaccination Policy, which led to the compulsory (and, in some cases, voluntary) release of hundreds of CF personnel: The Canadian Forces’ COVID-19 Vaccination Policy, 17 December 2021. The merit of this policy was questioned in light of subsequent decisions to permit some CF personnel to decline vaccination (with resulting career limitations) and the ongoing recruiting and retention shortfalls: Lee Berthiaume, “Canada’s defence chief was warned military’s COVID-19 vaccine mandate may not be legal”, 24 October 2022 (The Canadian Press).
• General Jonathan Vance pled guilty to “obstructing justice” and received an absolute discharge: General Vance (retired) Pleads Guilty to Obstructing Justice, 31 March 2022.
• The publication of the “Independent External Comprehensive Review into Sexual Misconduct and Sexual Harassment in the Department of National Defence and the Canadian Armed Forces” by The Honourable Louise Arbour – aka the “Arbour Report” – and the subsequent review and ‘implementation’ of some of the recommendations of the Report: The Arbour Report – Initial Observations, 22 June 2022.
• The implementation of several provisions of Bill C-77, which was enacted in 2019.
• The acquittal of Major General (MGen) Dany Fortin, and the several ancillary developments that arose out of MGen Fortin’s trial: MGen Fortin was acquitted. Now what?, 6 December 2022.

 

Additionally, Her Majesty, the late Queen Elizabeth II, died after a reign of over 70 years.  While that was not, in itself, a direct development in military law, it did present an opportunity to offer select observations on pertinent issues of military law: A Life of Duty, Service, and Devotion, 10 September 2022.

 

MND’s Policy Direction.  Before the Arbour Report was published, Mme Arbour offered initial observations upon which the MND purported to act.  I use the term ‘purported’ because the MND certainly did issue policy direction.  However, the impact of that policy direction, and the extent to which it has been implemented, remains unclear and, even by the end of 2022, much of the MND’s ‘action’ has been to call for “further study”.

Before 2022 had begun, the MND issued policy direction – issued in a problematic manner – to the Canadian Forces Provost Marshal (CFPM) and the Director of Military Prosecutions (DMP) that allegations of criminal misconduct of a sexual nature would be referred to civilian police for investigation and civilian prosecutors and courts for prosecution.  While the CFPM and DMP may have suggested that this decision emanated from their offices, it is a policy initiative that clearly originated with the MND, and I suggest that any assertion to the contrary is a fiction.

Minister of National Defence Announcement – Sexual Misconduct, 5 November 2021

Stand By for Apologies – But, let’s talk about transparency…, 16 November 2021

The MND’s New Policy and the Rule of Law, 19 November 2021

 

As 2022 progressed, it remained unclear whether the MND’s policy announcement – made with great fanfare and a semblance of decisiveness – was actually having its desired effect:

Setting Conditions for Failure, 11 July 2022

 

In December 2022, shortly before the seasonal recess of Parliament, the MND offered a statement regarding the extent to which Mme Arbour’s recommendations had been implemented or otherwise administered.  This was preceded by a technical briefing by various CF and Departmental staff.  CF and Departmental officials asserted that all allegations of criminal sexual misconduct had been, and were being, referred to civil authorities.  This assertion was offered in response to the fact that half of the court martial docket continues to involve prosecution of allegations of sexual assault.

Unfortunately, there was a degree of vagueness and ambiguity to these assertions.  [As an aside, ambiguity in the responses is not surprising when, during the ‘Technical Briefing’, those in attendance were limited to a single initial question, and a single follow up question.  The MND offered very little elaboration when she finally offered her comments.]

What remains unclear are the details and the answers to various questions arising from the limited information that was offered.

Lee Berthiaume, “Military can’t — or won’t — reveal outcomes of criminal sexual cases passed to civilians”, National Post, 12 December 2022, updated 26 December 2022

 

The various ‘unanswered questions’ include:

• What happened to the approximately 40 matters that civilian authorities declined to investigate or prosecute? Were these then investigated by the Military Police and prosecuted by DMP?  If so, how many of the matters presently on the court martial docket were rejected by civil authorities, and why?
• How many of the allegations were rejected by civilian police, and why?
• How many were rejected by civil prosecutors, and why?
• How many of these allegations did not give rise to charges, whether in the civil criminal justice system, or the military justice system?

 

A problematic aspect of the approach that appears to arise in these matters is the potential for ‘venue shopping’.  Sure, allegations might be referred to civil authorities initially, but what happens if those civil authorities conclude that investigation is not practicable or that there is no reasonable prospect for conviction?  Are charges then being brought in the military justice system despite the fact that civil prosecutors have concluded that the evidence does not meet the relatively low threshold to pursue a prosecution?  Presumably military prosecutors apply the same legal principles.  Consequently, while a different conclusion regarding the merit of the evidence is not completely foreclosed, it would merit some form of explanation if military prosecutors chose to proceed where civilian prosecutors declined to do so.

The answers to these questions – answers which have not yet been provided to the public, and which may never be provided to the public – are important factors in evaluating whether the MND’s policy direction from 14 months ago has actually had a constructive benefit and will support the administration of justice.

We must remember that there is a marked difference in access to justice when a CF member is charged and prosecuted under the Code of Service Discipline and when he or she is charged and prosecuted under the civil criminal justice system: Impact of Access to Justice on Sexual Misconduct Charges, 23 June 2022.

It would also be pertinent to know how many of the matters that were rejected by civil investigators and prosecutors are ‘historical allegations’ compared to more contemporaneous allegations.  Also, if many, or most, of the pertinent matters are ‘historical allegations’, one might query if they had been raised recently in the wake of the class action settlement for sexual misconduct in the CF, and the extent to which that context may have influenced decisions regarding whether they would be investigated further and whether charges would be laid.

 

The Arbour Report.  The “Report of the Independent External Comprehensive Review”, 20 May 2022 – more colloquially referred to as the ‘Arbour Report’ – was a focus of speculation during the first half of 2022 and was the focus of discussion during the latter part of 2022, after it was published.  Like many such reports penned by former judges of the Supreme Court of Canada, its conclusions have been presented as ‘unassailable truths’.  Frankly, I have reservations about such characterizations.

These inquiries, whether formalized under statute, such as The Third Independent Review of the National Defence Act, by the Honourable Morris J. Fish, or ad hoc inquiries such as the one conducted by the Honourable Louise Arbour, or the “External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces” by Marie Deschamps, offer a valuable third party examination of issues concerning the administration of the affairs of the CF.  However, characterizing them as indisputable because they are produced by a former judge of the SCC is a problematic assertion.

Like any study, they should be taken as a good faith examination; however, they can, and should, be subject to respectful scrutiny.  A colleague of mine, Brian L. Cox, a former US Army legal officer, recently offered his own critique of the Arbour Report in an online paper published by the Queen’s University Centre for International and Defence Policy: The Arbour Report and Supporting Effective Cultural Reform in the Canadian Armed Forces. There is much in his analysis with which I agree.

And I suggest that some of the frailties in the Arbour Report may help explain the seeming contradiction between the MND’s consistent assertion that she accepts all of Mme Arbour’s recommendations, compared to what may be viewed as reluctance to accept or implement the same.

I have even attempted to explain this dissonance to some national news media; however, I must confess that the explanations that I offered may have fallen on deaf ears.

The dynamic that appears to have arisen is not new.

The government convenes an ad hoc ‘external review’ with no statutory powers of inquiry nor any statutory framework or structure.  The person tasked with conducting the review will follow a self-determined approach.  Governments tend to be drawn to appointing a former SCC judge to head the inquiry, presumably to give it both gravitas and legitimacy.  Some people then draw the conclusion that, by virtue of being headed by a former SCC judge, the inquiry possesses some sort of ‘independence’.  It is rare for the government to disabuse people of such problematic notions.

However, such an inquiry is no more, or less, independent than any other ad hoc review.  Judges may have a degree of institutional independence.  Former judges are no different than anyone else in terms of independence.

And, while I respect Mme Arbour a great deal, like my colleague Brian Cox, I do suggest that there are legitimate criticisms that can be made of her Report, as well as the Report offered by Mme Deschamps.  Both suffered from significant selection bias that arises from what are essentially self-selecting surveys.  Both had weak empirical methodology.

To put it in perspective, if I were to be tasked and funded to conduct an ‘external review’ of pay and other financial benefits for the CF, and I conducted a survey in the same manner as Mme Arbour, I suggest that the data that I would collect would likely indicate that CF personnel are underpaid and that allowances are poorly administered.  But that does not mean that this result is an accurate reflection of the relevant legislated regime or its administration.

And I would obtain those results because such surveys: (a) inherently attract persons who are dissatisfied, regardless of the basis of dissatisfaction; and, (b) are generally incapable of verifying the factual accuracy of the data.

Moreover, Mme Arbour’s report does not provide a detailed presentation of the largely anecdotal data upon which she relied.  And, while the Report does describe her methodology, I agree with much of what Brian Cox has described in terms of the methodological limitations in the analysis.

For example, I would defy anyone to identify the data and analysis supporting the conclusion that recommendation #5 (exclusive civil jurisdiction over Criminal Code sexual offences) will contribute to an actual and material improvement to prosecution of criminal offences of a sexual nature.  The means of measuring improvement is not defined.  Does an increase in convictions, or an increase in the number of prosecutions, signal an ‘improvement’?  I suggest that such a simplistic approach would constitute problematic measurement.  One could remove procedural safeguards for such prosecutions, which would almost certainly lead to a marked increase in convictions.  But would that be an improvement?

Let’s not forget that, approximately 25 years ago, Parliament granted jurisdiction to the Code of Service Discipline for Criminal Code sexual offences arising in Canada because of outrage not unlike the outrage that is driving the present policy direction.  And I suggest that ‘policy development by trial and error’ is not the most efficient means of addressing perceived policy or legislative shortcomings.

The problem is that a lower rate of conviction in the military justice system could be a result of several different factors, functioning individually or jointly, including (but not limited to): (a) poorly conducted investigations; (b) a propensity to lay and prosecute charges where the evidence is markedly weak or where there is not a reasonable prospect of conviction; (c) institutional inhibitors either in reporting or prosecution; (d) a defective system for investigation or prosecution; or, (e) the impact on access to justice presented by representation by Defence Counsel Services at no expense to the accused.

The problem is that the Arbour Report does not reliably identify what the root cause(s) of a lower rate of conviction is/are, or even if the lower rate of conviction is indicative or determinative of flaws in the system.

One conclusion that is fairly reliable, is that some people feel inhibited in reporting misconduct.  That’s not news, and it is not unique to the armed forces.  But the recommendations do not explain adequately how this will be remedied by transfer of prosecutions to civil authorities.  Presumably, the military hierarchy remains (and, I would suggest, must remain, unless you have a clever idea to maintain command and control of armed forces without a hierarchy).  If that is one of the principal inhibitors, if not the principal inhibitor, it remains unclear how recommendation #5, or any of the other recommendations, will improve circumstances.

Since the MND issued her direction in November 2021, over 40% of ‘sexual assault’ files referred to civil authorities were purportedly rejected (although the circumstances and nature of those rejections remain unclear).  What does that say about the allegations or the investigations?  In the absence of greater transparency, it is difficult to draw reliable conclusions.

Therefore, consider this:

I contend that the MND and her leadership teams in the Department and CF likely have reservations about some of the analysis and recommendations in the Arbour Report.  I contend that they also likely had reservations about some of the conclusions and recommendations in the ‘Deschamps Report’.

However, the MND cannot voice those reservations because disagreement risks controversy.  After all, this was an ‘external’ and ‘independent’ review by a former SCC judge.  It has therefore been characterized as unassailable.  The problem is that such an assertion is predicated upon the logical fallacy of argumentum ad verecundiam – argument from authority.

Despite the methodological shortcomings of the Arbour Report, the MND is politically obliged to say that she accepts all the recommendations.  However, the MND has also proposed that further study is merited.  This creates a dissonance.  If those recommendations are all meritorious, why is further study required?  One could argue that further study is necessary to identify the specific details necessary for implementation – that certainly appears to be the position taken from certain stakeholders, particularly those in the CF, including the Office of the Judge Advocate General (OJAG).

However, I suggest that this still highlights shortcomings.  First, it suggests that there was a lack of detailed analysis in the Report regarding implementation.  Second, I suggest that the principal reason for taking the position that ‘further study’ is required is the above-mentioned dissonance: the MND has ‘accepted’ the recommendations because the manner in which the government touted the review makes it politically untenable to question the recommendations, even if the MND and her functionaries question the merit of some of them.

That is why we are where we are.  We are left with political double-speak arising from a Report that has shortcomings, but where the government has set conditions that essentially bar it from questioning the merit of the same Report.  We have a MND who wishes to give the illusion of action, without committing herself to a course of action that her advisors may have suggested would involve problematic changes.  It’s the same old story: the MND, CDS, and others wish to be seen to be doing something, regardless of whether it will actually materially improve morale, efficiency, and discipline. (There are also the objectives of improving or maintaining fairness and reasonableness in statutory decision-making; however, that does not appear to be a priority of the current government, the leadership of the CF, or the OJAG.)

 

Implementation of Bill C-77.  On 20 June 2022, the Governor in Council finally enacted the regulations necessary to cause several portions of Bill C-77 to come into force.  It took three years to complete this process, although most of that effort was completed in the year leading up to the implementation.  And I suggest that this timeframe is illustrative for anyone hoping that the ‘Arbour Report’ will lead to timely policy development.

And, while many of the elements of Bill C-77 concerned the much-trumpeted inclusion of the so-called “Victims Bill of Rights” into the Code of Service Discipline, one of the significant practical effects was to replace the summary trial process with summary hearings.

Advocates for summary hearings laud them as an improvement to the Code of Service Discipline.  They claim that it decriminalizes low-level disciplinary offences, which are now termed ‘infractions’ (as if that changes what they represent).  They also assert that it will make the process more efficient.

However, those same advocates seem to ignore, perhaps a little too conveniently, that most Code of Service Discipline offences tried by summary trial did not tend to give rise to criminal records.  And, where there was a risk that a conviction would give rise to a criminal record, an election for court martial would need to be offered to the accused.  (Or, in any event, would have been offered unless the presiding officer adopted a disingenuous, unreasonable, and indefensible interpretation of what was then article 108.17 of the QR&O).

Moreover, if the goal was to decriminalize summary trials, there was a far simpler solution: the National Defence Act (NDA) could simply have been amended so that conviction at summary trial would not give rise to a criminal record.  Such an amendment would have made a great deal of sense; if a matter were so serious that it should give rise to a criminal record, rather than simply an entry on an offender’s CF Conduct Sheet, then it should probably be tried by court martial (i.e. an independent an impartial tribunal – at least, that is what the Court Martial Appeal Court has held: R v Edwards et al).

The new summary hearings are certainly more efficient.  The chain of command need not worry about those inconvenient elections for court martial slowing down the inexorable machinery of military justice.  Nor do they need to worry about ensuring that their decisions are predicated upon compelling evidence or the proper interpretation of the law.  And I am not talking about the reduced burden of proof, although summary hearings do benefit from the lower civil burden of proof (the infamous ‘balance of probabilities’).  What I am referring to is the fact that there is very little supervision of such decision-making, and such supervision will only arise on judicial review, after the accused has exhausted the statutory review process.  I anticipate that the OJAG and CF decision-makers are relying on the deference that courts typically grant to statutory decision-makers on judicial review, which might permit potentially dubious interpretation of the elements of the new ‘infractions’ that replaced Code of Service Discipline offences.  Certainly, anticipated reliance on that deference appears to have been at least part of the basis for the disingenuous interpretation of (then) art 108.17 of the QR&O in the months leading up to the enactment of the regulations that created summary hearings.

Towards the end of 2022, I discussed some of the issues arising in summary hearings:

RCAF ‘Call Signs’ – Early Indications of Issues with Summary Hearings, 13 December 2022

In the coming weeks, we will delve into various issues arising from the ‘new’ “Military Justice at the Unit Level”.

 

Acquittal of MGen Fortin.  Your faithful scribe has already offered a fair bit of commentary concerning the prosecution of MGen Dany Fortin, and some of the related legal issues arising from his circumstances:

Wearing Canadian Forces Uniform in Civil Court, 30 September 2022

MGen Fortin’s Appeal, 3 October 2022

What happens if MGen Fortin is acquitted?, 24 October 2022

The Fortin CANFORGEN, 19 November 2022

MGen Fortin was acquitted.  Now what?, 6 December 2022

 

As 2022 drew to a close, the CF announced that Vice-Admiral (VAdm) Bob Auchterlonie would conduct an Administrative Review (AR) under Defence Administrative Order and Directive (DAOD) 5019-2 regarding the allegations against MGen Fortin.  In a contemporaneous report by the CBC (Ashley Burke, “Military launches probe to decide fate of Maj.-Gen. Fortin’s career after sexual assault acquittal”, 20 December 2022), one of MGen Fortin’s spokespeople suggested that this would amount to “double jeopardy”.  It wouldn’t.  An AR under DAOD 5019-2 is not a prosecution of an offence under the Code of Service Discipline, which would be barred by his acquittal before a civil court of criminal jurisdiction.  An AR is more akin to an ‘employment review’.

The same CBC report offered the comment that the AR would be based upon a ‘balance of probabilities’ and, thus, faced a lower burden of proof than a criminal prosecution.

However, that represents a potentially misleading over-simplification.  As I observed previously, it is not just a question of the burden of proof, but of the reliability of the evidence upon which the AR would be based.  The CBC reported that the officer conducting the AR would, under DAOD 5019-2, obtain the criminal court transcripts, the judge’s decision, and the military police investigation case file (and, presumably, any other relevant information).

Certainly, DAOD 5019-2 does direct that the officer conducting the AR should obtain such information.  However, as I have explained previously, in some detail, the AR process is manifestly ill-suited to evaluating contested evidence.  An AR does not receive viva voce evidence under oath.  It does not permit examination and cross-examination of witnesses.  It is not an independent and impartial tribunal:

Rory Fowler, “An Examination of Judicial Review” (June 8, 2020), online: The Military Justice Project, http://militaryjusticeproject.com/an-examination-of-administrative-review-in-the-canadian-forces-introduction

Rory Fowler, “The Nature and Limitations of Judicial Review” (June 13, 2020), online: The Military Justice Project, http://militaryjusticeproject.com/the-nature-and-limitations-of-administrative-review/

Rory Fowler, “The Right Tool for the Job:  Administrative Review is neither a Code of Service Discipline prosecution nor an Harassment Investigation” (June 19, 2020), online: The Military Justice Project, http://militaryjusticeproject.com/the-right-tool-for-the-job-administrative-review-is-neither-a-code-of-service-discipline-prosecution-nor-an-harassment-investigation/

 

However, do you know what does permit robust examination and cross-examination of witnesses, and is an independent and impartial tribunal?

A Canadian court of criminal jurisdiction.

And that is precisely the type of tribunal that acquitted MGen Fortin.  And it did so not solely, or even principally, because of the evidentiary threshold applied to criminal prosecution.  Judge Meredith, who presided over the trial, acquitted MGen Fortin principally because the testimony of the complainant regarding the identity of her assailant was unreliable.  And that was not a determination driven by the evidentiary threshold for criminal trials, but by broader principles that apply equally to determinations based upon the lower civil burden of proof.  A markedly unreliable recollection from a witness regarding an incident from over 30 years ago remains unreliable regardless of the burden of proof that is applied.

Consequently, even on the civil burden of proof, I suggest that it would be problematic for VAdm Auchterlonie to conclude that MGen Fortin was responsible for the assault reported by the unnamed complainant.  Were he to conclude that MGen Fortin was culpable, merely because the burden of proof is lower in an AR, I contend that such a conclusion would be unreasonable in the face of all of the relevant evidence and factors. Unlike the AR, the criminal prosecution before Judge Meredith had the capacity to receive viva voce evidence, under oath, and to permit the examination and cross-examination, by qualified and experienced counsel, of the witnesses presenting that evidence.  That is not something that VAdm Auchterlonie can ‘wish away’ by repeatedly citing the mantra that an AR relies upon proof on a ‘balance of probability’ rather than proof ‘beyond a reasonable doubt’.

The aforementioned CBC report also cites Charlotte Duval-Lantoine that an AR is important to ensure that a leader “… has the faith of both their superiors and subordinates.”  I find that observation problematic, particularly in the overly simplistic manner in which it was presented by the CBC.  In the dozens of AR that I have encountered, both in uniform and in private practice, I have encountered very little information concerning the views and opinions of subordinates.  Indeed, in some cases, the subordinates of the person who is the subject of the AR have manifestly demonstrated ongoing confidence in that person.  However, where the decision-maker is inclined to make an adverse determination, he or she will, instead, focus on the ‘confidence’ of the person’s supervisor (who is often the officer conducting the AR or who recommended that the AR be conducted).  Typically, when adverse decisions are made following an AR, the statutory decision-maker will lean heavily into the mantra “… I have lost faith in your ability to command …” or similar sentiments, regardless of whether the reliable evidence presented in the AR truly, objectively, justifies such a loss of confidence.  Indeed, decision-makers rely on that mantra almost as frequently as the mantra regarding proof on a ‘balance of probability’.

Here’s the challenge however: under principles of administrative law, which apply to such statutory decisions and decision-makers, that conclusion must still be reasonable.  It must be arrived at through a transparent process.  It must be justified by actual evidence – and preferably evidence that may be, and is, tested in a reliable and fair process.  And any decision must be articulated in an intelligible fashion, based upon reliable evidence, and present objectively reasonable conclusions.  The decision-maker must also approach the matter with an open mind.  That is the ‘culture of justification’ that the SCC adopted in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.

I suggest that it would be nearly impossible for VAdm Auchterlonie to conclude, in an open-minded, objective, and reasonable manner, that he (or anyone) has lost faith in MGen Fortin’s ability to lead.  Predicating an adverse decision based solely upon an allegation dating to more than 30 years ago, where the complainant has demonstrated a marked lack of reliability in identifying her assailant, does not present a justified, intelligible, and transparent basis for such a conclusion.  While a person might conclude, subjectively and arbitrarily, that he or she has personally lost confidence in the ability of a subordinate, that is not the test by which statutory decision-makers may make determinations that significantly affect the rights, interests, and privileges of their subordinate.  And that is because the decision-maker is making a statutory decision, not a personal one.

What remains to be seen is whether the AR process that has begun will be used to try to justify an unreasonable conclusion.  In my experience, if it is, it would not be the first such circumstance in recent years.

And that is not the only interesting aspect regarding the AR that has been initiated.  VAdm Auchterlonie is the Commander of the Canadian Joint Operations Command (CJOC).  MGen Fortin has been appointed to be the ‘Senior Advisor’ to Commander CJOC, making VAdm Auchterlonie his immediate supervisor (and, for a General Officer, an officer analogous to his commanding officer).  However, one need not be well-versed in CF organization to see that this position of ‘Senior Advisor’ is not a customary position within CJOC.  It is, essentially, an ad hoc – or even fictive – position created to counter the accusation that the CDS and his political masters have essentially relieved MGen Fortin from performance of military duties without actually relying on art 101.09 (or art 19.75) of the QR&O.

One wonders why the Chief Professional Conduct and Culture, Lieutenant-General (LGen) Jennie Carignan, was not assigned the task of conducting the AR.  True, she is not MGen Fortin’s immediate supervisor or an officer fulfilling a role analogous to his CO.  However, as I mention above, his role as ‘Senior Advisor’ can be viewed as largely fictive.  The CDS could just as easily have assigned him to a similar role with Professional Conduct and Culture, or even within the CDS’s office.

Moreover, many AR regarding potentially career-limiting consequences, are conducted by senior officers other than CO.  For example, the Approving Authority for AR conducted when a CO has recommended the compulsory release of a more junior officer or a non-commissioned member, will invariably be conducted by the Director Military Careers Administration (DMCA).  Pursuant to the direction at para 4.6 of DAOD 5019-2, the Approving Authority for an AR for a suspected ‘conduct deficiency’ by a Regular Force General or Flag Officer (GOFO) – and that is precisely what is alleged – would be Chief Military Personnel (CMP).  The current CMP is actually Acting CMP (although the manner in which she is described on the relevant Government of Canada website is “Acting Commander, Military Personnel Command”) – MGen Lise Bourgon – since VAdm Edmundson, the GOFO appointed to the position CMP, has, essentially, been relieved from performance of military duty (albeit, like other GOFO, without apparent recourse to art 101.09 or art 19.75 of the QR&O).  It might be problematic to have a GOFO of the same rank as MGen Fortin conduct the AR.

This is an unusual circumstance: a GOFO Officer is subject to an AR, and one that has been announced publicly, following a pointed acquittal before a civil court or criminal jurisdiction.  And the GOFO who, under the relevant policy, would normally be responsible for the conduct of the AR is, himself, compromised by a similar allegation against him.  And the GOFO who would be the alternative Approving Authority holds the same rank as the subject of the AR.  There is a compelling argument that the alternative Approving authority should be Chief Professional Conduct and Culture and not the Commander CJOC.

I suspect that one of the reasons why LGen Carignan is not involved in this AR is that it would represent a lose-lose situation for the CF.  If the AR concludes that there are insufficient grounds for any adverse action – as it surely must do in light of the evidence that has been tested in a very public fashion – then the GOFO making that decision will likely be the subject of criticism from elements of what were described as ‘stakeholder groups’ in CANFORGEN 164/22 (the “CANFOR(TIN)GEN”).  That would not bode well for the Chief Professional Conduct and Culture.

Similarly, if the decision is adverse to MGen Fortin’s interests – which I explain, supra, would be an unreasonable conclusion to draw based upon the available evidence – then LGen Carignan would also be compromised by such a decision.  Such an unreasonable decision, made in a public fashion, would be driven rather transparently by the same political calculus that MGen Fortin complained of in his application for judicial review, the appeal for which remains before the Federal Court of Appeal.

 

Additional Observations in 2022

During 2022, your faithful scribe has offered observations regarding the duties of officers and non-commissioned members (NCM) and how those duties might be relevant in the context of military justice:

Duties of Officers and NCMs – Part I, 14 February 2022

Duties of Officers and NCMs – Part II, 27 April 2022

Duties of Officers and NCMs – Part III, 12 May 2022

 

Your faithful scribe has also offered some observations regarding how military justice was administered within summary trials – notably when elections for court martial are withheld from an accused – and what this might auger in the context of summary hearings:

Some Observations on ‘Military Justice’ at Summary Trial – Part I, 25 May 2022

Some Observations on ‘Military Justice’ at Summary Trial – Part II, 5 June 2022

Some Observations on ‘Military Justice’ at Summary Trial – Part III, 8 June 2022

Some Observations on ‘Military Justice’ at Summary Trial – Conclusion, 13 June 2022

 

A more profound examination of summary hearings will be offered in the coming weeks.

There were also several ‘non-developments’ in 2022, not the least of which is represented by the ongoing failure of the Governor in Council to designate a new Chief Military Judge.  As a reminder, the last Chief Military Judge (CMJ), Colonel Mario Dutil, retired nearly 3 years ago on 20 March 2020.  His retirement came after a failed attempt by DMP to prosecute the CMJ under the Code of Service Discipline.

That problematic prosecution – which I suggest would have been clearly problematic to most objective observers – is all the more ironic given that the MND has directed that certain allegations must now be investigated by civil authorities and prosecuted before civil courts, even if they are clearly linked to military service and arise within a military context.

Those decisions are in the past – well in the past – and are beyond correction at this point.  However, an ongoing shortcoming that can be corrected is the continued refusal or omission by the Governor in Council to designate a new Chief Military Judge.  At a time when the independence of the military judiciary remains contentious (see below), and in which there are both significant developments and problems in the context of military justice, this ongoing lacuna continues to undermine military justice.

The Governor in Council has appointed a new Chairperson for the Military Police Complaints Commission in far less time than the position of Chief Military Judge has been vacant.  They have also advertised for a new Chairperson of the Military Grievances External Review Committee, and it would be surprising if they took three years to fill that position.  Vacancies for civilian Chief Justices/Judges appointed by the Federal Executive – such as the recent appointment of the new Chief Justice of Ontario – tend to persist only for a matter of weeks or a few months, at most.  Chief Justice Michael Tulloch was appointed to his current position just under four months after his predecessor, Chief Justice George Strathy, retired.  Yet, the position of Chief Military Judge has now been vacant for more than 33 months.

 

The Year that Will Be

As I allude above, the coming year will present further developments in the administration of the affairs of the CF and the application of military justice.  We may obtain greater detail regarding the allegations that have, and have not, been referred to the civilian criminal justice system.  We may learn whether the matters that have been rejected by civilian authorities have subsequently been investigated and prosecuted under the Code of Service Discipline.  Or, we may continue to receive partial information that is open to ambiguous interpretation and commentary.

We may also learn more about the ‘further study’ that will be conducted in the wake of the Arbour Report, and how many of her recommendations will actually be implemented.

We will certainly have an opportunity to observe the new summary hearings in action.  In the coming weeks, your faithful scribe will present a series of Blog posts offering commentary on some of the advantages and problems arising in the context of summary hearings.  Regrettably, the latter outweigh the former.

We will also undoubtedly learn the outcome of the ‘Fortin AR’ conducted by VAdm Auchterlonie, notwithstanding that such processes constitute personal information and ought normally not be disclosed to the public.  The appeal of Fortin v Canada (Attorney General), 2021 FC 1061, the hearing of which was adjourned on 3 October 2022, might also be heard by the Federal Court of Appeal (see Federal Court of Appeal Docket A-278-21), adding further complexity to that file.

One matter of significant importance in the administration of the affairs of the CF generally, and the military justice system specifically, is the pending decision by the SCC on the Application for Leave to Appeal the judgement of the CMAC in R v Edwards, et al.  All materials for this Application (registered before the SCC as Matelot de première classe C.D. Edwards, et al v His Majesty the King, Docket 39820) were submitted to the Judges for consideration by the Court in mid-February 2022, and the Court has still not decided whether Leave will be granted.

It is highly unusual for the Court to take over 10 months to determine an Application for Leave to Appeal.  Sometimes, such delay might arise when the Court is waiting for another matter, of material significance, to proceed through the same, or another, appellate court, in order to consider whether the Appeals may be joined for the benefit of efficiency and judicial comity.

By way of comparison, the judgment of the CMAC in R v McGregor, 2020 CMAC 8, was handed down 31 December 2020.  The CMAC dismissed the appeal by the accused by unanimous judgment; consequently, the accused did not have a right of appeal, but was obliged to seek leave of the court.  On 25 January 2021, the accused sought Leave to Appeal to the SCC.  All materials for the Application for Leave were completed and submitted to the Judges, for consideration by the Court, by 26 July 2021.  Leave was granted less than three months later, on 14 October 2021.  The appeal was eventually heard on 19 May 2022, and we are presently waiting for the SCC to hand down its judgment.

I contend that the appeal in R v Edwards, et al is of fundamental importance to military justice and that there are multiple compelling reasons for the Court to grant Leave.

The last time that the issue of independence and impartiality of courts martial was reviewed by the SCC was over 30 years ago in R v Généreux, [1992] 1 SCR 259.  And, in that matter, the Court held that courts martial, and the Judge Advocates who presided over them, suffered from fatal shortcomings in terms of the independence.  That judgment led directly to significant changes to the military justice system.

In the intervening years, the military justice system has undergone significant changes, some of which did not survive appellate review.[1]  And, although other elements of the military justice system have survived appellate review – including before the SCC[2] – some of those same judgments also hinted at other potential issues that might merit consideration by the SCC[3].  We are overdue for a thorough appellate review of the independence and impartiality of military judges and courts martial as they are presently constituted.

And there are several relevant factors for the court to consider.  The impact of the failed prosecution of the former CMJ raised the spectre of whether Military Judges are sufficiently independent.  While DMP has asserted that military judges must be subject to the Code of Service Discipline because “… no one is above the law …”, such an assertion falls flat in the face of the reality that neither the DMP nor the Judge Advocate General, among select others, could ever be prosecuted before a court martial (or before certain types of courts martial).[4]  And that assertion also appears to ignore the fact that a military judge could, potentially, be tried for any criminal wrong-doing before a civil court of criminal jurisdiction.  Oddly, while DMP seems to have no qualms about referring matters involving other CF personnel to civil courts, that option appears to have been rejected (if it was ever considered) 4 or 5 years ago when senior leaders in the OJAG referred a complaint against the CMJ to the CFNIS.

Similarly, a well-informed and reasonable observer, when considering whether military judges are able to conduct their business free from outside interference, might question why, after nearly three years, the Governor in Council has still failed to designate a Chief Military Judge.  That well-informed and reasonable observer would be aware that the Governor in Council has made other designations and appointments for other key positions during that same time-frame, including: appointing not one, but two, Chiefs of the Defence Staff; re-appointing the Judge Advocate General to a subsequent term totaling two years; appointing a Chairperson for the Military Police Complaints Commission.  The same Governor in Council has appointed several civilian Chief Justices and Chief Judges without any significant delay.

No reasonable justification has been offered for failing to appoint a new Chief Military Judge.  A reasonable and well-informed observer might conclude that this is a subtle reprisal for the judgments, in 2020, from a majority of Military Judges who concluded that their independence was jeopardized by placing them under the disciplinary authority of a GOFO at National Defence Headquarters.  These judgments, in turn, gave rise to uncertainty in the administration of military justice.

One might also conclude that the reprisal may also have been driven by the not-insignificant number of judgments, particularly in the last three years, in which select military judges acquitted CF personnel accused of sexual misconduct and charged and prosecuted under section 129 of the NDA.

Furthermore, under the new summary hearing legislation, the independence of military judges is now vulnerable in a way that did not exist prior to 20 June 2022.

While we will delve into this issue in greater detail in the coming Blog posts, it is worth noting that, prior to 20 June 2022, by virtue of (the then extant) subsection 164(1.3) of the NDA, military judges could not be tried for a service offence by summary trial and could only be prosecuted by court martial.  Upon the coming into force of several provisions under Bill C-77 on 20 June 2022, section 164 of the NDA (including all of its subsections) was repealed.  No similar provision was incorporated into the NDA, nor was an exception carved out under the QR&O.

Consequently, a Military Judge now could be charged with a ‘service infraction’ and tried by a ‘superior commander’ (such as the Deputy Vice Chief of the Defence Staff, who is the ‘commanding officer’ for military judges for matters of discipline) provided that the charges are laid, and the summary hearing is commenced, “… within six months after the day on which the service infraction is alleged to have been committed.” [NDA, s 163.4; QR&O, art 121.05].

You may recall, Dear Reader, that the charges that were initially laid against Colonel Dutil (distinct from the charges that were eventually preferred by DMP) by the Canadian Forces National Investigation Service (CFNIS) on 25 January 2018 comprised one count each of: an act of a fraudulent nature (contrary to para 117(f) of the NDA), willfully making a false entry in a document signed by him that was required for an official purpose (contrary to para 125(a) of the NDA), and conduct to the prejudice of good order and discipline (contrary to section 129 of the NDA).  All of these were unique military offences that do not arise under the Criminal Code.

Were such allegations made in the current context (i.e. where the alleged misconduct arose on or after 20 June 2022), potential equivalent ‘infractions’ under the new Military Justice at the Unit Level (MJUL) are described, respectively, at paras 120.02(a), 120.03(e), and 120.03(i) of the QR&O.  In light of the nature of the allegations levelled against Colonel Dutil, para 120.02(d) might also be relevant, were such allegations to arise presently.

The principal point is that similar allegations, made against a Military Judge on or after 20 June 2022 could, if brought within the relevant limitation period (six months), give rise to a prosecution under the summary hearing process.  And this process is separate and distinct from the process of the Military Judges Inquiry Committee (MJIC).  If, for example, the Acting JAG or the COS JAG, decided to bring a complaint of misconduct against a Military Judge, they would not necessarily need to rely on the MJIC process, especially if they believed that the MJIC might be reluctant to take action.  After all, in the Dutil matter, when the Chief Justice of the CMAC declined to take further action against Colonel Dutil, decision-makers in the OJAG ‘re-attacked’ precipitating a further (or second) military police investigation.  In a future circumstance, they may choose not to involve the MJIC, and opt instead to proceed under the Code of Service Discipline.

Le Directeur des Poursuites Militaires c. Le Juge Militaire en Chef Adjoint: DMP’s Forlorn Hope, 11 October 2019

‘Bad Facts’ and Awkward Law: The Director of Military Prosecutions v Deputy Chief Military Judge, et al., 2020 FC 330, 4 March 2020

 

And a well-informed and reasonable observer might conclude that there is a risk that such allegations could be made if someone in the CF, including someone in the OJAG, wished to interfere with a particular Military Judge’s standing.

We must remember that the evaluation of the independence and impartiality of judges – whether military or otherwise – is not dependent upon an ‘ideal’ circumstance.  Nor is it dependent upon whether a member of the Executive actually interferes with a judge’s independence and impartiality.  It concerns whether there is a reasonable and objective apprehension or perception by a fully-informed observer, viewing the matter realistically and practically, that a judge’s impartiality or independence could be compromised or impaired in a substantial number of cases.  In doing so, that observer must consider what safeguards, if any, have been established to minimize prejudicial effects and whether they are sufficient to meet the guarantee of institutional impartiality under section 11(d) of the Canadian Charter of Rights and Freedoms [Charter].[5]

There are several factors that could cause a well-informed and reasonable observer to conclude that the independence and impartiality of Military Judges is sufficiently compromised under the NDA that an accused appearing before a court martial would not benefit from an independent and impartial tribunal that is guaranteed under section 11(d) of the Charter.  There is a compelling argument for the SCC to grant Leave to Appeal.

 

Onward, into the unknown …

I anticipate that we will review these matters, and more, throughout 2023.  And, while there will undoubtedly be emerging issues that will need to be addressed in a timely, if not immediate, manner, your faithful scribe will also endeavour to present a topic for discussion at the start of each week.  While that might not manifest with a new Blog post each and every Monday, my intent is to offer pertinent observations on a consistent and regular basis.

 

[1] R v Trépanier, 2008 CMAC 3; R v Leblanc, 2011 CMAC 2.

[2] R v Moriarity, 2015 SCC 55; R v Cawthorne, 2016 SCC 32; R v Stillman, 2019 SCC 40.

[3] R v Stillman, id, para 86.

[4] Rory Fowler, “Breaking the Deadlock: Independence of the Military Judiciary and the Court Martial Appeal Court of Canada” (5 January 2021), online: SSRN <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3760834>;  Rory Fowler, “Prosecuting the Chief of the Defence Staff” (4 February 2021), online (blog): Law Office of Rory G Fowler <http://roryfowlerlaw.com/prosecuting-the-chief-of-the-defence-staff/>.

[5] R v Lippé, [1991] 2 SCR 114, 143 to 145, per Lamer CJ.  See also: Committee for Justice and Liberty v National Energy Board, [1978] 1 SCR 369, 394 per Grandpré J (dissenting); Valente v The Queen, [1985] 2 SCR 673, 684, 689 and 692 per Le Dain J.