An Object Example of the Benefits of Court Martial

16 May 2025

 

Late last week, various news media reported on the conclusion of a court martial of a senior officer regarding allegations arising in Europe within the context of NATO service.  While we do not yet have the judicial reasons arising from R v Colonel Kearney, CM Docket 202502[1], the outcome was the subject of reporting from Murray Brewster (Retired army colonel fined, reprimanded for insulting British senior officer) and David Pugliese (Canadian officer fined $3,000 for derogatory comment about British general), two reporters who regularly report on issues of national defence.

And, while details are limited at this stage, there is a fair bit that we can unpack regarding the Code of Service Discipline from what has been publicly discussed.  While I would normally prefer to include elements of the judgment in any discussion, I also wish to address this matter in a relatively timely fashion.  Once the judgment is published (and that is a point of discussion below), we can revisit any additional pertinent information or factors.

Most of the discussion below doesn’t focus on Colonel Kearney and his specific matter.  Rather, I focus on what we can learn from this proceeding regarding the administration of military justice and military discipline within the Canadian Forces (CF).

 

Factors

Let’s start with what we presumably know at this point in time.  Colonel Kearney initially faced multiple charges – five Code of Service Discipline charges, all contrary to s 129 of the National Defence Act (NDA)[2].  We know this based upon a CF Press Release from April 2024.  Based upon recent reporting, we don’t know precisely what all of the allegations entailed.  We don’t know if the allegations involve persons other than those mentioned in recent reporting.

We do know that all of those charges were laid on 23 April 2024.  We know that the ‘oldest’ of the allegations dated from December 2021, and that the subsequent four allegations ranged from January 2023 to November 2023.  We know that the charges were laid for service offences, rather than service infractions.  And we know that, by the time the charges were brought before a court martial, only one charge was presented.  We do not, however, know why only one charge was eventually prosecuted.

Recent reporting and CF Press Releases do not indicate whether the Director of Military Prosecutions (DMP) preferred multiple charges, and then withdrew all but one, or if DMP only preferred a single charge.

Although we have not expressly been told why charges were not laid as service infractions, based upon what has been reported, most allegations could not have been prosecuted as service infractions because of the passage of time and the limitation period at s 163.4 of the NDA.  It is possible that, by the time that the investigation was concluded and charges were laid, it was too late to proceed with service infractions for any of the allegations.  This conclusion involves a degree of speculation involved here; however, in the absence of any explanation from the senior leadership of the CF or from the Office of the Judge Advocate General (OJAG) or the DMP, we are forced to speculate.

We know that Colonel Kearney pled guilty to a single charge under s 129 of the NDA.  We know that he was sentenced to a $3,000.00 fine and a severe reprimand.  I suspect that this was the result of a negotiated resolution that led to a joint submission to the court martial.  Again, that is speculation on my part, but it is also an educated guess.  Once the judgment is notoriously published, we will know if that is the case.  For the discussion below, I will make the relatively safe assumption that this was, in fact, a joint submission.

We also know that Colonel Kearney retired before the charges were heard.  We also know that, pursuant to s 60(2) of the NDA, the military justice system retains jurisdiction over the alleged offence and accused when such allegations are prosecuted by court martial, even if the accused retires before the court martial concludes its process.

 

Scope of Discussion

This matter offers us an opportunity to examine some of the key distinctions between the administration of military justice before a court martial and the functioning of the so-called “Military Justice at the Unit Level” or MJUL.  We can examine the role of counsel when service offences are prosecuted before a court martial and the ongoing and pointed refusal of the CF chain of command and OJAG to permit counsel to appear in matters prosecuted within the MJUL.

We can examine some of the benefits that arise when a CF member is prosecuted by court martial.  There are some obvious benefits, including trial before an independent and impartial tribunal.  However, some benefits need not be exclusive to courts martial.  And we can examine some of the myths that have arisen (or been constructed) around the changes to the Code of Service Discipline.

We can also examine why these charges were prosecuted before court martial rather than a summary hearing.  As I note above, very little information has been offered regarding that issue.  And the lack of explanation is an issue itself.  But I can offer an educated guess, which, in turn, may be revelatory.

And some of the commentary that has been offered, particularly in Mr. Pugliese’s article, merits further discussion.

 

Why did the CF choose to prosecute service offences by court martial?

The first question that people may have is: why were these allegations prosecuted as service offences before a court martial?

The short answer is: because they couldn’t be prosecuted as service infractions before a summary hearing.  However, Colonel Brett Boudreau (retired) posed a further question in David Pugliese’s article, and I will also address that question below.

One of the supposed reforms of the Code of Service Discipline under Bill C-77 was that the changes would offer a levelling effect.  Everyone would be treated the same regarding service infractions and summary hearings.  Now, even officers at the rank of colonel and higher would be subject to summary justice.  It was the great egalitarian re-balancing of military justice.

At least, it was supposed to be an egalitarian re-balancing of military justice.

But not really.

We rarely (if ever) hear of a colonel or GOFO (General Officer / Flag Officer) being charged with a service infraction and prosecuted before an “Officer Conducting a Summary Hearing” (OCSH).  But this was still a ‘great leveller’ right?  Right …?

Technically, when allegations of misconduct are investigated, investigators – whether they are military police or unit personnel conducting a so-called “unit disciplinary investigation” (UDI) – are instructed that an investigation could lead to charges either for a service infraction or a service offence.  In other words, they are expected to proceed with an open mind regarding what disciplinary path may be followed.

Let’s start with art 102.03 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O):

102.03 – SCOPE OF THE INVESTIGATION

(1) The investigation must, as a minimum, collect all reasonably available evidence relevant to a determination of whether a service offence or a service infraction has been committed.

(2) Any complaint that is frivolous or vexatious need not be investigated.

 

In other words, when the relevant authority receives a complaint of misconduct, the objective of any investigation is to collect all reasonably available evidence – which includes both inculpatory and exculpatory evidence – to determine: (a) if a service offence or service infraction may have occurred; and, (b) to determine if the allegations warrant charges for a service offence or a service infraction.

This legislative direction is amplified by a policy statement in the MJUL Policy 2.0.  Para 1.2.1 of that Policy states:

1.2.1 The investigation should be carried out swiftly but completely. It must, as a minimum, collect all reasonably available evidence relevant to determining whether a service offence or a service infraction has been committed. The investigation should work to uncover evidence relevant to proving or disproving any possible charge(s) to be laid. In respect of investigating possible service infractions, a guide to the elements of service infractions is set out at Annex A. [Footnote omitted, but referred to art 102.03(1) of the QR&O]

 

In other words, when a disciplinary investigation commences, it is purportedly not limited in scope to service infractions or service offences.  The expectation is that investigators will maintain an open mind about not only whether the allegations should be dealt with as service infractions or service offences, but also whether the evidence proves, or disproves the allegations.

Of course, that hasn’t stopped investigators, including military police, from expressly investigating matters with the goal of laying charges for a service infraction in order to avoid the greater scrutiny that arises when charges for service offences are placed before a court martial.  I have encountered investigations conducted by the military police in which investigators expressly indicated that they have chosen not to pursue lines of inquiry that might take an investigation outside of allegations that can be prosecuted as service infractions.  More on that later.

There are likely two principal reasons why the allegations against Colonel Kearney were charged as service offences rather than service infractions: (a) the alleged seriousness of the allegations; and, (b) the impact of the limitation period at s 163.4 of the NDA.  And I suspect that it was the latter factor that was the most significant.  And, in the absence of any explanation from relevant CF decision-makers, we are forced to speculate.

Arguably, the allegations against Colonel Kearney were considered sufficiently serious that they warranted charges for service offences.  We are impaired in this analysis due to the limited information in the public domain.  We know that Colonel Kearney was initially charged with five separate service offences, all pursuant to s 129 of the NDA.  By the time the court martial was convened the charges were reduced to a single charge contrary to s 129 of the NDA.  And we don’t know why that is.  We could speculate.  There have been several examples recently of ill-considered charges that were eventually withdrawn.  But it would still be speculative.

Arguably, the incident occurred in a multi-national setting and included senior officers.  Consequently, the relevant charge-layers and prosecutors may have concluded that these allegations needed to be the subject of a court martial, which is more transparent and more notorious than a summary hearing.  They may have been concerned that non-Canadians who were involved in the matter might question the merit of our so-called MJUL, since an OCSH is not a truly independent and impartial actor.  They may have been concerned about ‘optics’ (which most people would likely refer to as ‘appearances’ in order to avoid confusion with, say, scopes and night-vision goggles).  And, if people were concerned about ‘optics’ when the matter concerns international NATO staff, why aren’t they concerned about optics when the allegations do not?

Frankly, I suspect that the principal reason why charges were laid in relation to service offences was that most of the allegations could not have been prosecuted as service infractions because of the time that elapsed before the initial complaint was made, combined with the lack of efficiency with the military police investigation.

Pursuant to s 163.4 of the NDA, a summary hearing in relation to charges for a service infraction must commence within 6 months of the date of the alleged infraction.  While the specific dates of the alleged misconduct have not been mentioned in recent reporting, we do know that the initial complaint was made in November 2023 and charges were laid on 23 April 2024.  And delay in military police investigations is now a relatively well-known phenomenon.

Even if the investigation was concluded by December 2023 and a decision regarding charges was made without delay (which is not always a given), some of the allegations would have still been ‘older’ than 6 months.  By the time that charges were laid on 23 April 2024, and assuming that a summary hearing could have commenced by the end of April 2024, only allegations dating from the end of November 2023 or later could have been prosecuted by summary hearing.  It took five months to complete the military police investigation and to make a decision regarding what charges would be laid.  And we know that Colonel Kearney cooperated with the investigation.

Five months to investigate a lay charges is hardly a stellar example of an efficient system, although it’s markedly better than many of the more notorious recent examples of delay in military police investigations.  And the delay may not have been solely due to military police inefficiency.  We do not know when military police sought pre-charge legal advice or how long it took to produce that legal advice.  But this delay pretty much ensured that, regardless of any decision-maker’s conclusion regarding the seriousness of the allegations, the only way that the allegations could have been prosecuted would have been as service offences prosecuted by court martial.

And we do not yet know which of the five allegations was the subject of Colonel Kearny’s guilty plea.

And this circumstance can be distinguished from many that I encounter.  Specifically, I am referring to circumstances in which allegations fall outside the limitation period for service infractions.  In Colonel Kearney’s circumstances, the relevant decision-makers proceeded with charges for service offences.  I contend that, typically, when the chain of command cannot proceed with the less transparent, less fair, and less robust MJUL – i.e. summary hearings before ‘Officers Conducting Summary Hearings’ or OCSH – they opt, instead, for administrative ‘punishment’.

And that brings me to a peculiar comment attributed to Colonel Boudreau (retired) in Mr. Pugliese’s article

 

There’s no such thing as administrative disciplinary action.

In the closing paragraph of his online article, Mr. Pugliese quotes Colonel Boudreau (retired):

“This was an egregious use of military police and military justice resources to deal with a matter that could easily and sufficiently been dealt with at the time by CAF leaders through administrative disciplinary means …”

 

However, there is no such thing as “administrative disciplinary means” or “administrative disciplinary” measures.  But Colonel Boudreau (retired) can be excused for perceiving that there are.

[As an aside, it is possible that he may have been subtly and unintentionally misquoted.  It happens.  Or his comment may have had greater explanation in a lengthier quote.  Journalists like Mr. Pugliese often face limited space for their articles, obliging them to truncate what might otherwise be lengthier and more informative quotes.  But I will take the statement at face value.]

There are disciplinary processes and administrative processes under the NDA.  I have discussed many of these previously.  All of them are ultimately the exercise of statutory powers, placing such decision-making squarely within the realm of public and administrative law.  But the exercise of powers under the NDA are generally characterized as falling within the Code of Service Discipline (“disciplinary”) or not (“administrative”).

In the past, I have tried to describe distinguishing features of what are typically characterized as ‘administrative’ and ‘disciplinary’ processes, including:

Rory Fowler, “Discretion is the Better Part of Valour Statutory Decision-Making”, (12 October 2020), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/discretion-is-the-better-part-of-valour-statutory-decision-making/>

Rory Fowler, “Discretion is the Better Part of Valour Statutory Decision-Making: Part II – Discretion and the Code of Service Discipline”, (13 October 2020), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/discretion-is-the-better-part-of-valour-statutory-decision-making-part-ii/>

Rory Fowler, “Duties of Officers and NCMs – Part II: ‘Promote the Welfare, efficiency, and good discipline of all subordinates’ (27 April 2022), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/duties-of-officers-and-ncms-part-ii-promote-the-welfare-efficiency-and-good-discipline-of-all-subordinates/>

Rory Fowler, “Developments in the Code of Service Discipline” (1 August 2024), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/developments-in-the-code-of-service-discipline/>

 

Technically, considering the statement from Colonel Boudreau (retired), there are no hybrid administrative-disciplinary measures.  And don’t you love it when a lawyer commences an explanation or statement with “Technically …”.

At least, there aren’t supposed to be such hybrid measures.

But in practice, there are.  CF decision-makers regularly use administrative measures, such as Remedial Measures under Defence Administrative Order and Directive (DAOD) 5019-4[3], for a punitive or disciplinary purpose.  And that may be the nuanced (but problematic) practice to which Colonel Boudreau (retired) alludes.

But such measures do not represent disciplinary action.

Allegedly.

After all, whenever I suggest that such actions are being used as improper substitutes for the Code of Service Discipline, the chain of command, legal officers from the OJAG, and even Department of Justice counsel are quick to assert “… administrative action, such as remedial measures, does not constitute disciplinary action …”.  And, superficially, that may be true.  After all, para 4.16 of DAOD 5019-4 expressly states:

4.16 Administrative actions are not punishment or sanctions under the Code of Service Discipline.

 

This is followed by paras 4.17 and 4.18:

4.17 Both disciplinary actions under the Code of Service Discipline and administrative actions are meant to address a CAF member’s conduct or performance deficiency. They may operate independently or one may complement the other.

4.18 Disciplinary actions and administrative actions serve different purposes. Disciplinary actions possess a sanctioning aspect that administrative actions do not. Disciplinary action is initiated only if there are sufficient grounds to justify the laying of a charge under the Code of Service Discipline against a CAF member.

 

And lawyers from the OJAG and the Department of Justice, and the CF chain of command, expressly cite these provisions as part of their assertions that remedial measures and other administrative actions do not constitute disciplinary action.

And, in a properly administered CF, they wouldn’t.

But it would be more accurate to suggest that remedial measures and other administrative actions are not supposed to be used as substitutes for the Code of Service Discipline.  Yet they are.  Frequently.  And disingenuously.

And the bifurcation of the Code of Service Discipline into a system in which service offences are exclusively prosecuted before courts martial and service infractions are exclusively prosecuted by summary hearings offers a glimpse at the misuse of remedial measures.

Service infractions and summary hearings bear some similarity with remedial measures and other administrative actions.  Both are administered by the chain of command with little involvement of lawyers.  Certainly, there is no truly independent adjudicative authority and no immediate scrutiny by independent courts.  Determinations are made on a balance of probability.  And the impact of actions and decisions under these processes varies from limited to significant.

A key difference is that summary hearings are designed to adjudicate contested facts.  It’s a poor design and one that is fraught with shortcomings, but at least there is some effort to create a system to adjudicate contested facts.  DAOD 5019-4 does not offer a system in which contested evidence may be reliably tested.  Sure, para 5.1 of the DAOD indicates that:

5.1 A remedial measure may be initiated if there is clear and convincing evidence that establishes on a balance of probabilities that a CAF member has demonstrated:

a. conduct deficiency based on an applicable standard of conduct; or

b. performance deficiency whereby, over a reasonable period of time, the CAF member has not met the applicable standard of performance.

 

The problem is that the DAOD is pretty limited in describing the means of testing such evidence.  Where a remedial measure is imposed for a ‘performance deficiency’ the issue likely turns on a supervisor’s perception of a subordinate’s performance.  But I doubt that’s what Colonel Boudreau (retired) was talking about.  He was (presumably) referring to the use of remedial measures or other administrative action to punish alleged misconduct.

Sometimes remedial measures or other administrative action is taken to punish alleged misconduct (or a ‘conduct deficiency’, to use the parlance of DAOD 5019-4) following the conduct of an Administrative Review (under DAOD 5019-2).  The problem is that Administrative Reviews are also not designed to test and evaluate contested evidence, particularly in terms of alleged misconduct, and particularly when the allegations are first investigated as a potential service offence or service infraction.

Ideally (or even realistically), an Administrative Review would rely on outcomes (i.e. “findings”) determined in more reliable processes.  Similarly, remedial measures or other administrative action would be predicated upon determinations that have been made using more reliable processes.  That’s a key factor that would separate a disciplinary/criminal process from an administrative process.

For example, if a CF member were charged with “impaired operation of a motor vehicle” contrary to s 320.14 of the Criminal Code[4], the resulting criminal prosecution might lead to a finding of guilt.  That finding of guilt could then be relied upon to take further administrative action under DAOD 5019-4.  Presumably, if the administrative action were for “alcohol misconduct” pursuant to DAOD 5019-7 there would be further information made available that distinguishes any resulting administrative action from simply being a repeat of the criminal prosecution.

If, for example, it is alleged that the CF member has demonstrated an alcohol dependency, there would need to be more evidence than simply a finding of guilt for impaired operation of a motor vehicle.  However, the finding of guilt for impaired operation of a motor vehicle would support the conclusion that the CF member demonstrated “alcohol misconduct” as that is defined under DAOD 5019-7, Alcohol Misconduct.

When I was advising the chain of command, the manner in which I would often distinguish between the two mechanisms (i.e., the Code of Service Discipline and remedial measures) involved variations on the following:  Where the chain of command wishes to address a specific act, conduct, or neglect that undermined the discipline, efficiency, and morale of the CF, or which constituted misconduct, then it should rely on the Code of Service Discipline for the proverbial quick, sharp, corrective impact.

If the subordinate was demonstrating a trend of misconduct, such as habitual lateness, repeated acts of minor insubordination, or continue friction working with colleagues, then that was indicative of the need for more nuanced and longer lasting corrective action.  That was an indication that, to use the parlance of para 4.3 of DAOD 5019-4, the chain of command should take “… serious steps to assist a CAF member in overcoming their conduct or performance deficiency and are based on established CAF standards.”  Those corrective steps include compulsory and periodic monitoring and feedback sessions which, if performed properly, can have an ameliorative effect.

Unfortunately, when these are simply used as a convenient alternative to disciplinary action, we typically do not see much evidence of meaningful periodic monitoring or any true ameliorative impact.

And that is because, when the chain of command uses remedial measures as a convenient alternative to the Code of Service Discipline, they tend to ignore the emphasis on assisting the CF member with overcoming the deficiency.  The supposed policy intent is not to use these measures as punishment.  There is a clear link between remedial measures and release items.  For example, a release under item 5(f) of the Table to art 15.01 of the QR&O, can be justified due to “… factors within the officer or non-commissioned member’s control, [the officer or NCM] develops personal weaknesses or has domestic or other personal problems that seriously impair their usefulness to, or impose an excessive administrative burden on, the Canadian Forces.”

In other words, if the officer or NCM develops performance or conduct deficiencies that impair their usefulness to the CF or which make them a burden on the CF, there is an expectation that, before taking the drastic step of ordering compulsory release, the chain of command will take serious and genuine steps to assist the CF member in overcoming those deficiencies.  [I expand upon these concepts at: Rory Fowler, “A Word or Two on Release Items in the Canadian Forces” (18 January 2021), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/a-word-or-two-on-release-items/>.]

You know … demonstrate some leadership.  Things like that.

After all, when administered properly – and ‘properly’ is often a key factor – a remedial measure offers the sort of heightened leadership scrutiny and periodic monitoring of a subordinate’s actions that can assist the subordinate in improving their performance or conduct.  And the nature of the periodic monitoring is such that it involves, and even encourages, self-reflection and self-assessment by the subordinate.

It can also help identify or highlight a shortcoming of which the chain of command may not initially be aware.  For example, a subordinate who is repeatedly late may demonstrate such a shortcoming because of a failure to manage their time effectively.  But it may also be due to difficulty getting a good night’s sleep, which, in turn, is brought on by a completely separate, and as-yet-unidentified factor or factors.  And such factors can range from anxiety, familial discord, a drug or alcohol dependency, or any of a number of factors of which the chain of command may not be readily aware.

Remedial measures and other administrative action are not intended to be substitutes for the Code of Service Discipline.  Remedial measures and other administrative action, when employed properly, reasonably, and effectively, can impart these beneficial processes and outcomes.

Unfortunately, all too frequently, they are not employed properly, reasonably, and with the desired intent of assisting a subordinate with overcoming a deficiency.  Instead, they are employed as an improper alternative to the Code of Service Discipline.  And all too frequently, they are used because the chain of command does not like their disciplinary action to be scrutinized.

I have noticed a disturbing trend under the Code of Service Discipline when allegations are made in relation to matters that might not be criminal offences.  And this trend typically unfolds as follows:

1. Allegations of misconduct are investigated for the express purpose of laying charges for service infractions (which would be prosecuted by summary hearing). Investigators – including military police – expressly focus only on matters that can be prosecuted as service infractions (i.e., they focus on allegations arising less than 6 months ago).
2. If an investigation identifies multiple allegations, some of which fall within the limitation period for service infractions, and some of which fall outside that limitation period, charges will be laid only for those that fall within the limitation period. Charges for service offences – which are not subject to a 6-month limitation period – are not considered.
3. If the allegations fall outside the 6-month limitation period – or where charges are not laid quickly enough to commence a summary hearing within the 6-month limitation period – charges for service offences are not laid.
4. Instead, the CF member will be subject to one or more remedial measures or other administrative action, which will often rely on the untested military police investigation or unit disciplinary investigation (UDI). Thus, notwithstanding that the investigation is commenced as a disciplinary investigation, the untested investigation is used for a so-called administrative process.
5. In fact, often the full investigation will not be disclosed to the CF member. Instead, a redacted summary – often a heavily redacted summary – will be disclosed, and the allegations will be treated as proven.

 

Granted, the CF member will be given an opportunity to refute the allegations.  But that’s where a nuanced perversion of justice arises.  Regardless of whether the action is disciplinary or administrative, the onus is on the Crown to prove misconduct.  The accused (or, in administrative proceedings, the respondent) does not bear the onus of disproving misconduct.  The problem in the sequence described above is the manner in which the allegation is presented to the ‘accused’/respondent.  By that point in the administrative process, the chain of command has already asserted that it believes the allegation to be true, and then calls upon the CF member to refute it.  And that’s not how the burden of proof ought to be applied.

Moreover, where information disclosed to the ‘accused’/respondent is not the entire investigation, then there is a failure of procedural fairness.  Presumably, when the chain of command has opted to proceed ‘administratively’ (i.e., not under the Code of Service Discipline), it appears that these decision-makers have concluded that they are not obliged to disclose all the relevant evidence to the ‘accused’/respondent.

That’s not correct.

Where the chain of command has opted not to rely on the Code of Service Discipline, there is an argument that can be advanced that the rule in R v Stinchcombe, [1991] 3 SCR 326 [Stinchcombe] does not apply. [This is the Crown’s legal duty to disclose all relevant evidence in its possession to the defence.  There are some limited exceptions; however, as a general rule, all evidence in the possession of the Crown, including exculpatory evidence, must be disclosed.]  Stinchcombe applies to criminal prosecutions and, by extension, to Code of Service Discipline prosecutions.  Arguably, it does not apply to remedial measures or other administrative action under DAOD 5019-4.

But the requirement for disclosure in administrative proceedings is nearly as robust: Sheriff v Canada (Attorney General), 2006 FCA 139, [2007] 1 FCR 3.

A failure to disclose investigations is exacerbated when limited disclosure is further redacted.  And that isn’t the only shortcoming related to evidence.  Absent any opportunity to test the evidence against them, providing disclosure to the ‘accused’ CF member represents only a partial opportunity to make reasonable answer and defence.  If the allegation turns on credibility and reliability of evidence, a file review is often not sufficiently robust to weigh and examine such evidence.

Yet that is precisely what happens when many CF personnel are subject to disciplinary investigations that are then use for what Colonel Boudreau (retired) aptly, if incorrectly, described as “administrative disciplinary means”.

Alternatively, Colonel Boudreau (retired) may have meant something else when he used the term “administrative disciplinary means”.  He may have been referring to the MJUL.  I offer this alternative explanation because I have recently encountered an OCSH who used the expression “administrative disciplinary process” to described the MJUL.

The OCSH, who had demonstrated other misconceptions about the MJUL – the very process that he was called upon to administer in a summary hearing – had used this expression when responding to a request for review under art 124.03 of the QR&O.  And this ambiguous expression is largely meaningless.

First, a summary hearing is very clearly a disciplinary process.  That is how it is defined under the MJUL Policy 2.0, which does not employ the term of art “administrative disciplinary process” (probably because it is an inherently ambiguous description).  Relevant decision-makers can take a hint from the name of Part III of the NDA in which the legislative parameters of service infractions and summary hearings are established: the Code of Service Discipline.

While it is true that elements of public and administrative law are relevant to the MJUL, the same is true for any statutory decision-making.  That’s the very nature of public and administrative law.  But that doesn’t alter the disciplinary nature of the MJUL.

 

Must be nice to be represented by counsel …

The outcome of Colonel Kearney’s court martial was influenced markedly by the involvement of counsel.  An independent[5] prosecutor examined the charges and was responsible for preferring and prosecuting the same.  Colonel Kearney was assisted by skilled counsel from Defence Counsel Services[6].  The defence counsel was able to meet with the prosecutor to discuss potential means to resolve the charges.  They were able to clarify issues through such discussions.  If issues remained unresolved or contested, there was a means of trying those issues before an independent military judge and, potentially, a panel comprised of other CF personnel as triers of fact.

CF personnel affected by remedial measures and administrative action do not benefit from such procedural and substantive safeguards.  CF personnel tried by summary hearing do not benefit from those safeguards, even when they expressly request that their counsel be permitted to participate in the summary hearing.  And, as I have explained previously, there is no prohibition against civilian counsel appearing before summary hearings.  Yet OCSH routinely and consistently refuse to permit such counsel from appearing and representing an accused prosecuted by summary hearing:

Rory Fowler, “Barriers to Legal Representation – Part IV: The Outside Counsel Bogeyman (cont.)” (13 September 2024), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/barriers-to-legal-representation-part-iv-the-outside-counsel-bogeyman-cont/>

 

Colonel Boudreau (retired) bemoans the use of military police and judicial resources in these circumstances.  I disagree.

First, you have allegations made against a senior Canadian officer in a multi-national setting and where complainants included officers of another NATO armed forces.  We don’t know the nature of the full spectrum of allegations, but we now enough to know that they were potentially politically sensitive because of the ranks and positions of the people involved.

Besides, military police are purportedly not investigating allegations of sexual offences (although I have noticed that, from time to time, they do get involved in such investigations).  I suspect they have extra time on their hands.  I just wish that they were more efficient, effective, and competent in conducting their investigations.

As for military judicial resources, that is precisely what they are there for.  And one need only look at the current court martial calendar to identify that the military judges are not excessively busy.  And you’ll note that judicial resources were not tied up for lengthy periods of time in this particular matter.  And do you know why that was?  Because counsel were involved to narrow down the issues that needed to be addressed before the relevant tribunal.  And the officer who was subject to that process could have some confidence that his matter would be heard before an independent, impartial, and open-minded trier of fact and law.

Moreover, the judgment, when it is eventually notoriously published, will be subject to public scrutiny.  Such judgments are even subject to appeal if the outcome were disputed, and the parties would again be represented by counsel in any appellate process.

I cannot speak for Colonel Kearney, but I know that if I were still in uniform, and I were accused of wrong-doing, I’d be more confident regarding a process in which I was represented by counsel, in which I received full disclosure, in which I was permitted to make full answer and defence before an independent and impartial decision-maker, and which offered both a transparent process and one that is subject to subsequent judicial scrutiny.

Heck, I’ve borne witness to disciplinary and administrative decision-making within the OJAG.  If there was one organization that one would expect to get the law and process ‘right’, you’d think it would be the OJAG.  But even they have erred, and sometimes spectacularly so.

And that doesn’t mean that judges never make mistakes.  If judges at first instance were always correct, we wouldn’t have appellate courts.  However, unlike the decisions of OCSH, a judge’s decision will typically be notoriously published.  It will be subject to public scrutiny.  And it will also typically be better reasoned.

For example, the decision of military judge, Colonel Nancy Isenor, who presided over Colonel Kearney’s court martial, was delivered publicly.  The news media, and people like Colonel Boudreau (retired) were present.  The decision will presumably be published on the Chief Military Judge’s website and CANLII.  Members of the public will be able to scrutinize that public judgment.

For the present, what we know if the judgement is what has been published in news media accounts.  For example, Mr. Pugliese reports that Colonel Isenor stated that the comment was “gender-based, crude and offensive” and brought disrepute to the Canadian Forces.  [I have presented the quoted phrase in the manner that Mr. Pugliese presented it.]

I don’t doubt that the comment was crude and offensive.  I am less inclined to draw a definitive conclusion that it was gender-based.  It certainly could have been.  However, I have heard the exact same expression used to describe a man.  It doesn’t make the expression any less crude.  But it may be a leap of logic that Colonel Kearney used that phrase specifically because he was speaking about a female officer.

I know that I may give the impression of being a genteel and refined person, but I, too, have lived the life of a soldier.  I have heard a variety of coarse expressions or terms.  I may even have used one or two myself.

And, despite the transparency of such a proceeding – which is markedly more transparent than the MJUL or administrative measures – I suspect that there is a great deal about what transpired that will never be made public.  I suspect that there were several people, including senior officers, who did not comport themselves in a professional, respectful, and disciplined fashion.  And the basis of my suspicion is simple: people do not tend to make such utterances without some form of provocation.

When Colonel Isenor’s judgment is made public, we may learn more.  It may not be the full story, but it will be more transparent than any so-called “administrative disciplinary measure” (whatever the heck that is).  And whether or not Colonel Isenor is correct in concluding that the statement was ‘gender-based’ likely did not affect the sentence imposed.  If I am correct and the sentence was a product of a joint submission by the prosecution and defence, then the military judge was obliged to accept the joint submission unless “… the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.”[7]

 

What about the sentence?

Based upon the information that has been presented, by virtue of s 249.27 of the NDA, this outcome will not lead to a criminal record for Colonel Kearney, although he has been convicted of an offence under an Act of Parliament.

And this matter offers an object example regarding the myth that has been perpetuated that the Code of Service Discipline was bifurcated under Bill C-77 in order to ensure that the summary justice system – now referred to as the MJUL – was non-penal in nature.

I contend that this myth represents a wolf in sheep’s clothing.  Instead, the real intent was to create a system with few safeguards so that the chain of command could retain an unfettered hand in matters of discipline.  To do so, Parliament, the Governor in Council, and the CF had to accept that the system would have to be re-branded as non-penal and that certain powers of punishment – such as detention – would have to be removed.  The ongoing question, however, is whether the resulting system is sufficiently fair in light of the powers that remain.

For clarity, s 249.27 of the NDA states:

Convictions for certain offences

249.27 (1) A person who is convicted of any of the following offences, or who has been convicted of any of them before the coming into force of this section, has not been convicted of a criminal offence:

(a) an offence described in section 85, 86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 or 129 for which the offender is sentenced to one or more of the following punishments:

(i) a severe reprimand,

(ii) a reprimand,

(iii) a fine not exceeding basic pay for one month, or

(iv) a minor punishment;

(b) an offence under section 130 that constitutes a contravention within the meaning of the Contraventions Act.

Criminal Records Act

(2) An offence referred to in paragraph (1)(a) or (b) does not constitute an offence for the purposes of the Criminal Records Act.

 

When this provision was first introduced under the dramatically named Strengthening Military Justice in the Defence of Canada Act[8], para 249.27(1)(a) stated:

“… an offence described in section 85, 86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 or 129 for which the offender is sentenced to …”.

 

This led to some ambiguity about whether the provision would apply to a person sentenced to more than one of the punishments described in the sub-paras (see, for example, R v Sergeant Scott, 2018 CM 2034).  Consequently, s 249.27 was amended to its current form by Bill C-77, with the amendment coming into force on 21 June 2019.

The monthly salary for a colonel of the regular force, or a colonel of the reserve force on a ‘Class C’ period of service, who is a ‘General Service Officer’, is, at a minimum, $14,522.00.  Therefore, the sentence of a severe reprimand and a fine of $3,000.00 following a finding of guilt for an offence under s 129 of the NDA falls within the exception under s 249.27(1) of the NDA.

This was the exact same sentence imposed in the court martial of R v Sergeant Bluemke, 2022 CM 4015, which involved a senior NCO making offensive remarks in the presence of students on an Infantry Section Commander Course at Canadian Forces Base Petawawa in early 2021.

The outcome in Colonel Kearney’s matter tends to lay bare the disingenuous justification for the bifurcation of the Code of Service Discipline under Bill C-77.  The OJAG and other proponents of the change in summary justice emphasize the “non-penal” nature of the MJUL.

The reality was that summary military justice prior to the bifurcation of the Code of Service Discipline was essentially non-penal, particularly when one considers the fact that most charges tried by summary trials were tried without an election for court martial.

Under the previous regime, five specific service offences were identified in the now-repealed art 108.17 of the QR&O as offences for which the right to elect trial by court martial could be withheld if certain conditions were met.  Those offences were:

• Insubordinate Behaviour (s 85 NDA)
• Quarrels and Disturbances (s 86 NDA)
• Absence Without Leave (s 90 NDA)
• Drunkenness (s 97 NDA)
• Conduct, Act, Neglect to the Prejudice of Good Order and Discipline (s 129 NDA)

 

[Those offences remain within the Code of Service Discipline but are now charged far less frequently.  These were consistently the most commonly charged offences prior to June 2022, and Absence Without Leave (s 90 NDA) and Conduct, Act, Neglect to the Prejudice of Good Order and Discipline (s 129 NDA) were consistently the two most frequently charged offences.  According to the annual reporting by the OJAG, charges under s 90 and s 129 of the NDA consistently comprised over 50% of all charges disposed of under the summary justice system.  If one were to add the offences under sections 85, 86, and 97 of the NDA, that percentage rose to over 70%, sometimes over 80%.

One could argue that they were exempted from election for court martial under certain circumstances because they were commonly arising offences.  However, a more compelling argument can be offered that these were the most commonly charged offences because the right to elect trial by court martial could be withheld.  That is consistent with the trend, which developed in the three years prior to the bifurcation of the Code of Service Discipline, in which the chain of command withheld the right to elect trial by court martial for personnel charged under section 129 of the NDA in a manner that was inconsistent with the legislation at art 108.17 of the QR&O.  And they did so, purporting to rely on legal advice from the OJAG.  This improper practice was exposed in Noonan v Canada (Attorney General), 2023 FC 618 [Noonan].

There were additional considerations for charges under s 129 of the NDA, and I have canvassed those previously:

Rory Fowler, “Some Observations on ‘Military Justice’ at Summary Trial” (25 May 2022), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/some-observations-on-military-justice-at-summary-trial-part-i/>

Rory Fowler, “Noonan v AGC, 2023 FC 618 – An unsurprising result and its second-order implications” (5 May 2023), online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/noonan-v-agc-2023-fc-618-an-unsurprising-result-and-its-second-order-implications/> ).

 

That said, the right to elect trial by court martial served as a ‘safety valve’ for fairness in the administration of the Code of Service Discipline.  If the chain of command wished to employ significant powers of punishment, which included not only detention but also reduction in rank, then the accused would have the option to elect trial by court martial.

If an accused were charged with a service offence (which could include select criminal offences) other than the five service offences enumerated above, the accused would always have a right to elect trial by court martial.  If an accused were charged with one of those five service offences, art 108.17 of the QR&O would apply.

Para 108.17(1)(b) described the threshold that would trigger the right to elect trial by court martial.  If the accused were charged with one of the service offences enumerated above (and if the conditions established in para 108.17(1)(a) were met regarding any charges under s 129 of the NDA), an election for court martial could be withheld if:

… the circumstances surrounding the commission of the offence are sufficiently minor in nature that the officer exercising summary trial jurisdiction over the accused concludes that a punishment of detention, reduction in rank or a fine in excess of 25 per cent of monthly basic pay would not be warranted if the accused person were found guilty of the offence.

 

What this meant, in practical terms, was that, if the presiding officer wished to withhold the accused’s right to elect trial by court martial, the presiding officer would be limited in their powers of punishment.  They would not be permitted to impose detention, reduction in rank, or a fine in excess of 25 percent of basic monthly pay.  In other words, the most significant punishment available to any presiding officer where the right to elect trial for court martial was withheld – which was, frankly, almost all summary trials – was a fine of up to 25% of monthly pay and/or a severe reprimand.  And a ‘delegated officer’ was limited, in all circumstances, to punishments of no more than a fine of 25% of monthly pay and a reprimand.

All five of the service offences for which election by court martial could be withheld are listed at para 249.27(1)(a) of the NDA.  And the powers of punishment available when the right to elect trial by court martial was withheld all fall within the scope of sub-paras 249.27(1)(a)(i) to (iv).

In other words, under the military summary justice regime in effect prior to 20 June 2022, where an accused was not permitted to elect trial by court martial, there was zero chance of incurring criminal liability.  Granted, where the accused was permitted an election for court martial, and instead opted for trial by summary trial, there was a risk of incurring a penal (read: criminal) consequence.  But the crucial point is that, in such circumstances, the accused controlled whether they would be tried by court martial or summary trial.

The principal take-away is that, when a CF member was tried by the previous summary justice regime, and where the accused had no choice but to submit to that summary justice regime, the accused did not face penal/criminal consequences.

So, the argument that the new MJUL was introduced to remove criminal jeopardy is hokum.  Realistically, there never was criminal jeopardy where the accused was subject only to the summary justice regime.

As I have indicated previously, the new MJUL was introduced to make it easier to find an accused guilty and to limit scrutiny of the charges that were being prosecuted summarily.  Now the burden of proof has been reduced from “beyond a reasonable doubt” to “balance of probability” (and we will explore that particular issue in an upcoming blog in light of the recent SCC judgment in John Howard Society of Saskatchewan v Saskatchewan (Attorney General), 2025 SCC 6).  And, once the chain of command has decided to proceed summarily, there is no right to elect trial before an independent and impartial tribunal.  Now, it’s justice at the hands of the chain of command, without involvement from those pesky lawyers and judges.

Of course, they are limited temporally.  If allegations are raised several months after the alleged misconduct purportedly arose, or if investigators take too long to complete an investigation, then the window of opportunity for the MJUL will close.  Arguably, if the allegations are sufficiently serious that they warrant a disciplinary response, we should see charges being laid for comparable service offences.  But that is not what we are seeing.

I suggest that Colonel Kearney’s circumstances represent an outlier.  And I suspect that the decision, in this case, to proceed with charges for service offences was driven by the multi-national context in which the allegations arose.  It is also entirely possible that there were other factors driving the decision, including a desire by decision-makers to prosecute a senior officer or even a desire by select persons to prosecute Colonel Kearney specifically.  Again, in light of the limited transparency regarding why certain decisions were made, we will likely never know.

But what I do know is that trend that has been demonstrated since the introduction of the MJUL in June 2022, is that the chain of command and military police tend to decide, at the outset of an investigation, whether they intend to proceed under the MJUL.  Once that decision is made, they will focus solely on potential service infractions that can be prosecuted before a summary hearing.  They will do so even if allegations might not fall within the jurisdiction of the MJUL.  And when their desired course of action is barred by the six-month limitation period, they will generally not proceed with charges for service offences.  Instead, they will have recourse to administrative action as an improper substitute for disciplinary action.

 

Concluding Remarks

I have not offered my opinion regarding whether Colonel Kearney ought to have been prosecuted under the Code of Service Discipline for the comment that he made.  I have not opined on the fitness of the sentence imposed on him.  In light of the limited information that has been made available, the sentence does not appear to be outside the range of what would be appropriate.  There appear to have been significant mitigating factors.  While this will not produce a criminal record, it does constitute a conviction for an offence under an Act of Parliament.  A severe reprimand will have little practical impact on Colonel Kearney.  It is tantamount to what previous generations would have called “blotting his copybook”.

A $3,000.00 fine is not inconsequential.  But I also note that, since this was prosecuted before a court martial, and Colonel Kearney had the skilled assistance of a legal officer from Defence Counsel Services, he did not incur significant legal expenses.  Had Colonel Kearney been the subject of an unfair or unreasonable summary hearing, (or, previously, a summary trial), the legal expense he would have incurred in seeking judicial review of an unfair or unreasonable decision would have cost him markedly more than $3,000.00.  And he would have only recovered a fraction of those costs if successful.

I have no doubt that some people will be of the view that Colonel Kearney was the subject of over-zealous prosecution.  Others may believe that he was dealt with too lightly.  And some may feel that the outcome was just and appropriate.

But I will say this: Colonel Kearney benefitted from a process that was fairer and more reasonable than many CF persons who are subject to so-called ‘administrative disciplinary processes’ or who are prosecuted by summary hearings.

 

[1] I generally prefer to have the benefit of judicial reasoning before commenting on a proceeding.  However, in the present circumstances, my focus is less on the nature of Colonel Kearney’s court martial and sentencing, and more on what his court martial represents when compared to other processes and decision-making.  There were also what I considered to be problematic comments made when this matter was first reported.  And (relative) timeliness of commentary was more important than waiting for what would likely be an unsurprising description of the grounds for the military judge’s acceptance of a joint submission on sentencing.

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

[3] DAOD 5019-4 also alludes to other administrative measures, distinct from ‘Remedial Measures’, that may be employed.

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

[5] Note that DMP does not enjoy the same level of independence as a military judge.  Nor does he need such a level of independence.  But he is independent of the chain of command.

[6] Defence Counsel Services is also independent of the chain of command.  However, there are real concerns that the legal officers who are posted to Defence Counsel Service might suffer in terms of promotion, selection for postings, and selection for courses, when their role is perceived as opposing the will of the chain of command.

[7] R v Anthony‑Cook, 2016 SCC 43, [2016] 2 SCR 204.

[8] Strengthening Military Justice in the Defence of Canada Act, SC 2013, c 24.