When you cite ‘Fiat Justitia …’ in defence of ‘military justice’, don’t forget the counter-point of ‘… ruat coelum’

On 21 August 2019, Ken Watkin, a former Judge Advocate General of the Canadian Forces (and not Judge Advocate General of the Canadian Armed Forces) and a leading scholar in the Law of Armed Conflict and International Humanitarian Law published an article entitled “Fiat Justitia”: Implications of a Canadian Military Justice Decision for International Justice in the on-line periodical Just Security.  For anyone interested in this issue, I strongly recommend that you take the time to read Ken’s article – at least once.

And to give the author his due, I choose to refer to him below as Brigadier-General (Retired) – BGen (ret’d) – Watkin.  In addition to his accomplishments as a scholar, Ken Watkin is a warm -hearted gentlemen (literally: a gentleman and a scholar) who would likely be the first to insist that I call him ‘Ken’.  But, as I say, I prefer to give him his due, so BGen (ret’d) Watkin it is.

I agree with a fair bit of what BGen (ret’d) Watkin wrote, including the limitations of comparing Canadian policy and legal decision-making concerning ‘military justice’ with civil law jurisdictions that have taken a markedly different approach to such issues.  Like BGen (ret’d) Watkin, I tend to favour comprehensive comparison with a particular focus on other Anglo Common Law jurisdictions such as the UK, Australia, New Zealand and even the US (notwithstanding its well-deserved reputation as an exception to the practices in other Anglo Common Law Countries).  I also recognize the potential limitations of comparison with even these polities; every country has its own distinct history, laws and societal norms.

Nevertheless, there were a few comments in the article that gave me pause.

When discussing the “Implications of Stillman for Compliance of Military Justice Systems with Human Rights Norms”, BGen (ret’d) Watkin observed:

Stillman also implicates the manner by which international human rights law norms are incorporated into national jurisdictions and the mechanisms by which compliance with those norms is judged. In this respect, “international” criticism of military justice systems frequently relies disproportionately on decisions of two regional human rights tribunals: the European Court of Human Rights and the Inter-American Court of Human Rights. Canada, the United States, or for that matter the majority of States, including some with the largest armies in the world (e.g. China, India, Pakistan, Iran), are simply not subject to the jurisdiction of such regional human rights tribunals. Nor do they necessarily appear to want to be, as is reflected in the American and Canadian decisions not to be subjected to the jurisdiction of the Inter-American tribunal. Evidently, these North American States believe international human rights norms are properly reflected within their domestic constitutional frameworks.

I found this statement surprising.  It’s not the observation that Canada is not subject to judgments of the European Court of Human Rights or the Inter-American Court of Human Rights that surprises me.  That is not debatable.  What surprised me is the comparison with China, Pakistan and Iran when considering the implication of Stillman with respect to compliance with human rights norms.

Really???

That’s not a ‘club’ with which I would want to group Canada.  Frankly, in light of some of the developments that we can observe in the US, I’m not entirely certain that I would want to align Canada too closely with American ‘norms’ of justice and human rights.

I believe that I understand why BGen (ret’d) Watkin made that comparison: they represent significant armed forces.  But I suggest the appropriate consideration is the nature of how armed forces and the civilian governments that control the armed forces – where armed forces are, in fact, controlled by civilian governments, preferably within a constitutional democracy – apply human rights norms to both civilian and military justice systems.

BGen (ret’d) Watkin suggests that the reliance of ‘international’ critics of military justice systems on, for example, the European Court of Human Rights, might need to be tempered as “… critiques of military justice systems based on regional human rights tribunal decisions without reference to case law governing other States can appear to be parochial and even “foreign,” rather than truly international in nature …”.

While I can agree with the merits of avoiding a narrow parochial perspective when conducting comparative analysis, I also suggest that comparison with judgments of the European Court of Human Rights (and the European Convention on Human Rights) has a fair degree of merit when considering Canadian military justice.  After all, the Canadian Charter of Rights and Freedoms was heavily influenced by the European Convention on Human Rights (ECHR).  And, while the ECHR is increasingly viewed as a ‘European’ Convention, its development was led by the British jurists in post-WW II Europe.

However, BGen (ret’d) Watkin accurately observed that, in Stillman, the Supreme Court of Canada did not overtly refer to either the ECHR or judgments of the European Court of Human Rights.  However, I’d suggest that the Supreme Court of Canada can be fickle about when it chooses to rely on international law in support of its conclusions.[1]

Understandably, in light of the focus of his scholarship (and the title of his article) BGen (ret’d) Watkin focused on both international comparison and international implications.  A key focus of his commentary was the maintenance of discipline during operations and deployments.

What is significant about Stillman, however, is that the Supreme Court of Canada upheld a near-universal application of the ‘military justice regime’ in a domestic setting, pursuant to paragraph 130(1)(a) of the National Defence Act, when Canadian civil courts are available.  One of the foci of the case was on whether deprivation of a right to a jury trial was appropriate and consistent with the Charter where there was clear parallel civilian jurisdiction.  As I have indicated earlier, the apex court tended to brush over the fact that subsection 11(f) of the Charter referred both to “… offence[s] under military law …” that were “… tried before a military tribunal …”, choosing not to give meaning to both phrases, and thereby rendering the ‘military exception’ under subsection 11(f) nugatory.

Commitment to Change?

BGen (ret’d) Watkin concludes his article with commentary that “Justice Requires a Commitment to Change”.  I agree whole-heartedly.  His article concludes thusly:

Ultimately if justice is to be done (“Fiat Justitia”) in a military context there is a requirement for an ongoing commitment to change. A key aspect of the willingness of the Supreme Court to uphold the constitutionality of the court martial system in Stillman was the significant effort over the past thirty years to effect change and modernize. There must be a cultural commitment within the military to effect such change. Positively, as the Stillman court noted “[j]ust as the civilian criminal justice system grows and evolves in response to developments in law and society, so too does the military justice system. We see no reason to believe that this growth and evolution will not continue into the future” (Stillman, para. 53).

Again, I agree with this sentiment.  However, what I have observed over the past several years could be described (at best) as a limited commitment to change or (at worst) a bloody-minded resistance to change.  This is where “ruat coelum”[2] applies.

The motto of the Office of the JAG (and of the Legal Branch of the Canadian Forces) is “Fiat Justitia” – “let justice prevail”.  As I’ve mentioned before, my personal take on that motto – the way in which I ‘operationalized’ it – was: “speak truth to power”.  If you speak truth to power, and ensure that public decision-making is governed by the rule of law, there’s a pretty good chance that justice will prevail.

However, that’s only part of the motto: “Fiat justitia, ruat coelum” – let justice prevail, though the heavens may fall – is attributable to a variety of sources, including Seneca the Younger, Ferdinand I, Holy Roman Emperor, and Lord Mansfield.  It can be interpreted as signalling the perils of an overly dogmatic adherence to a particular course of action.  I suggest that it is also relevant to the stubborn resistance to change within the military justice regime.

Many of the more recent changes to the Code of Service Discipline were precipitated not by conscientious policy-making, but because legislators and policy-makers were forced to do so in light of Charter and other court challenges.  For example, when the Code of Service Discipline was significantly amended in 1998, military judges did not have true security of tenure.  They were appointed to time-limited terms and required re-appointment.  This lacuna was eventually addressed, but only after challenged before courts martial and appellate courts.

The right of an accused member to elect trial by Standing or General Court Martial – rather than leaving that decision to Director of Military Prosecutions – only arose after the Court Martial Appeal Court held, in R v Trepanier, 2008 CMAC 3, that the existing regime contravened the Charter.  BGen (ret’d) Watkin is well aware of the impact of the Trepanier judgment – he was JAG at the time.

When Bill C-60 was rapidly pushed through Parliament in the wake of Trepanier[3], legislators also (finally) removed the provision whereby a CF member could be convicted by a simple majority of a panel before a General Court Martial.  Although this specific change did not arise directly from the Charter challenge in Trepanier, I suggest that it arose principally because legislators, and their legal advisors in the Office of the Judge Advocate General and the Department of Justice, likely concluded that this indefensible provision could be the next significant challenge by the stalwart legal counsel at Defence Counsel Services.

Perhaps the “… significant effort over the past thirty years to effect change and modernize …” is as much a reference to the efforts of governmental policy-makers, including senior leaders in the Office of the JAG, to convince appellate jurists of the vital need for a military justice system, and the unimaginable chaos that may ensue if the broad reach of the Code of Service Discipline is curtailed.  This campaign is waged not just in court-rooms, but in what could be described as ‘diplomatic overtures’ and public relations campaigns to plant the seeds that bear fruit in eventual judgments.

I suggest that much of the so-called evolution in Canada’s military justice system has arisen either from Charter challenges by defence counsel at court martial, or potential Charter applications that legislators and policy-makers wish to avoid.

Yet there remains a stubborn desire to stack the deck against the accused wherever possible.  Bill C-77, which recently received Royal Assent, is certainly a ‘change’; however, I would argue that it is a regressive change.  Policy-makers assert that the introduction of summary hearings under the (eventual) regulations that will be introduced under Bill C-77 simply reflect a regulatory regime within a ‘de-criminalized’ portion of the Code of Service Discipline.

Critics, such as myself, contend that it is simply an effort to lower the burden of proof and remove the right to elect trial by court martial, all in aid of making it easier to convict CF member of Code of Service Discipline offences (even if they will then refer to them as infractions).  I contend that these changes are motivated, at least in part, by a palpable loss of confidence, by the chain of command, in the Code of Service Discipline, and a resultant shift toward using administrative measures to punish CF personnel.  To those of us who served throughout the 1990’s, this is a sentiment that repeats like hastily eaten spicy chicken wings.

Thus, while Bill C-77 certainly represents change to Canada’s military justice system, I suggest that the changes it introduces to the anticipated ‘Summary Hearing’ process represent a retrograde approach, and not a positive step forward.

And, on a slight tangent …

As an aside, Dear Reader, if you conclude that I might have a personal bias (or at least a warm spot in my heart) for the legal officers at Defence Counsel Services, permit me to offer the following.  Aside from the legal officers in Defence Counsel Services, all other legal officers in the Office of the JAG (or even outside the Office of the JAG) uniformly support the chain of command.  I ought to know – I used to be one of them.  They are ‘part of the team’, pulling in the same direction as the leadership of the CF (even if that direction may be problematic at times).  Indeed, as I have written previously, the current JAG mission statement, with its emphasis on ’client-focused’ advice, could be interpreted as “… give the client what she or he wants, not what she or he needs …”.  I cannot help but feel that there is an implied tone of “don’t rock the chain of command’s ‘boat’”.

The one exception is Defence Counsel Services.  Their role is to provide a rigorous defence for those CF members prosecuted before courts martial.  These eight (or so) legal officers ‘oppose’ the 20 (or so) prosecutors at Director of Military Prosecutions, the chain of command, and the myriad legal officers in the Office of the JAG who support the chain of command.  It would not be inaccurate to describe them as the OPFOR in the Code of Service Discipline – although their role does not arise simply in ‘exercises’.

I would suggest that this role does not win them many supporters in the chain of command, or, potentially, even in the Office of the JAG.  The current Director Defence Counsel Services is the first officer to occupy that billet as a colonel.  His predecessors were lieutenant-colonels, even though their ‘peers’ around the ‘Deputies Table’ of the Office of the JAG were all ‘full’ colonels.  And I would suggest that the legal officers in Defence Counsel Services do not necessarily get the same recognition as other legal officers in the Office of the JAG in terms of promotion, awards, or advantageous opportunities.  Perhaps this is because they are viewed with suspicion by their peers and senior legal officers in the Office of the JAG.

Perhaps it’s my contrarian nature.  Perhaps I tend to root for the underdog.  Perhaps it’s simply because I know what it’s like to pull against the tide of ‘received wisdom’ and to occasionally be the voice of reason in the wilderness.

What I will say is this: just as the quality of preparation of a CF unit will be dependant, in a significant fashion, on the quality of the OPFOR they face in pre-deployment training, the quality of the Code of Service Discipline – the ‘military justice regime’ of the CF – owes a great deal to the hard working legal officers in Defence Counsel Services.  They occupy the front lines in ensuring that that Canada’s military justice system – our military justice system – is Charter-compliant, fair, and transparent.

You generally won’t hear them say that – QR&O 19.36 and the JAG Policy Directive on Publications tend to have a chilling effect on their opportunity to do so.  Consequently, I will say it for them.

[1] Compare Stillman to the unanimous judgment of the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, per L’Heureux‑Dubé J, in which the Court relied heavily on comparison with international conventions.  In Saskatchewan Federation of Labour v Saskatchewan, [2015] 1 SCR 245, per Abella J, the majority relied on international convention and developments in support of the conclusion that “… a meaningful process of collective bargaining requires the ability of employees to participate in the collective withdrawal of services for the purpose of pursuing the terms and conditions of their employment through a collective agreement.”, para 75.

[2] Alternate Latin spellings include caelum or cælum – I’ve chosen to go with ‘coelum’.

[3] The Court Martial Appeal Court refused the request by Director of Military Prosecutions for a one-year suspension of the execution of the judgment.

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