Barriers to Legal Representation – Part II

21 August 2024

 

In the first of four Blogs in this series, I posed the question:

Do members of the CF require the assistance of privately retained legal counsel when faced with various statutory decision-making processes?

I then answered it with the ‘typical’ response from a lawyer: “It depends”

I amplified that response with an explanation of some of the factors that a CF member may consider when pondering this course of action.

The seriousness or potential impact of the decision – whether anticipated or actual – is a crucial factor.  Other factors include: the complexity of the matter; the nature of the rights, interests, or privileges engaged in the decision-making process; and, potential second-order effects of the decision.

Perhaps the most crucial factor for any CF member is one that is also driven by other factors, some of which are intangible: does the CF member have confidence that the relevant statutory decision-maker will approach the matter with an open mind and will make a fair and reasonable decision?

The present Blog post will discuss cost as a barrier – specifically, the anticipated cost to retain and instruct counsel.  This is likely an obvious factor for many and will often be one of the more compelling barriers they encounter.  In addition to its obvious nature as a barrier to representation (and, thus, a barrier to safeguarding fairness and reasonableness in statutory decision-making under the National Defence Act (NDA)[1]), there are second-order consequences that bear mention.

In particular, CF decision-makers, and their legal advisors, will be well aware that cost is a barrier to CF personnel who wish to seek the assistance of privately retained counsel.  I suggest that this influences the manner in which decisions have been made and are being made.  And those decisions are not limited solely to the eventual principal statutory decision at issue.  It will be a significant factor in procedural and jurisdictional decisions by statutory actors (and their legal advisors).  It affects the tactics employed by CF decision-makers.  It influences the policies that are developed.  And it influences the choices of CF decision-makers regarding the processes they employ, and the processes that they avoid.

 

The elephant in the room

Retaining a lawyer can be an expensive proposition.  Ask anyone charged with a criminal offence.  Ask anyone who has consulted counsel regarding the likely cost of bringing an action for damages against the Crown.  Ask anyone who has sought the assistance of counsel to safeguard their military career in the face of intransigent and closed-minded statutory decision-making.

To put things in perspective, were I to represent a CF member, charged with a criminal offence before a civil court of criminal jurisdiction, and in which we anticipate that the trial could take approximately 3 days, the cost of my services could easily amount to $25,000.00 or more.

That may seem like a lot to pay for “… only three days of work …”.  And it would be, if my services amounted only to three days of work.  But they don’t.  My services – or the services of any lawyer – involve many hours, amounting to several days of work.  And a client is paying for the knowledge and expertise that a lawyer has developed over many years.

Inevitably, there will be initial appearances before the court as part of the judicial process.  Many of these will be brief and will not contribute significantly to the docketed time.  Some appearances are not brief.  There will be correspondence to write, including correspondence seeking disclosure – and potentially reiterating my client’s right to disclosure when it seems like the military police are playing ’silly games’ with what they provide to the Crown.[2]  There will be the time spent reviewing disclosure.  There will be interviews with the client and, potentially, with other witnesses.  There may be a need to retain outside assistance, such as private investigators.  Depending upon the nature of the allegations, there may be copious social media communication or text messages to review.

Once the scope of the evidence is known to me, there will be time spent analyzing this evidence and developing a theory of the case and a litigation strategy.  It will also likely be necessary for me to reduce certain advice to writing for the client.  I will also have to prepare for, and conduct, Crown resolution meetings.  If a matter is likely to go to trial, it will be necessary to prepare for, and conduct, a judicial pre-trial conference.  It is not inconceivable that more than one may be necessary in the course of a prosecution.

And, once a trial date is set, I will need to prepare for a trial.  A conservative estimate is that every day of trial requires three days of preparation.  A more realistic estimate is a ratio of 5:1.

And, if there are Charter issues arising – e.g., unreasonable search and seizure, unreasonable arrest or detention, a failure to inform an accused of his right to counsel or to implement that right, or any of a number of other issues that can arise in criminal investigations – applications or motions regarding such issues can easily cost $10,000.00 or more.  And, if the intent is to challenge a statutory provision by way of “constitutional question” – i.e., challenging the legislation itself, and not simply the actions of the executive – the cost of such an application can be even more.

I can confidently tell you that most defence counsel do not charge their clients for every minute spent working on their file.  Were we to do so, the bill would potentially be crippling.  However, we are still professionally obliged to present a competent defence.

Courts martial can be even more expensive.  First, despite the efforts of military judges to improve efficiencies, they are not as efficient as civilian judicial processes.  In part, that is due to the ad hoc nature of courts marital.  Perhaps more significantly, many courts martial require counsel to travel to the location of the trial.  Unless the trial is conducted in Kingston, my client would normally be obliged to cover my travel and accommodation expenses.  Those can quickly add up.  That’s one of the reasons why I typically recommend that a CF member charged with a service offence under the Code of Service Discipline initially rely on the assistance of Defence Counsel Services (DCS) – which is provided free of charge.  If issues develop, or are identified, in which civilian counsel would be appropriate (e.g., if there is a conflict of interest in relying on DCS), then an accused can always seek out the assistance of privately retained counsel.

When I am retained to assist with what many characterize as ‘administrative processes’ – e.g., a Notice of Intent (NoI) to recommend release[3], an Administrative Review, objecting to a remedial measure, or assisting with the preparation and presentation of a grievance[4] – it typically won’t cost as much as a criminal defence or a court martial.  But it could still cost $5,000.00 or more.  And I charge a relatively moderate hourly fee.

Many of these matters are particular to the individual CF member and the CF member’s specific circumstances.  Some arguments will be similar to arguments that I have raised before.  However, unlike many synopses and so-called analyses presented by DMCA staff, my advice is not a boiler-plate template.  The representations that I assist in preparing are not simply a cut-and-paste from a prepared text.  I actually put some thought and effort into the analysis.  And that takes time.  And time is money.

Similarly, if I assist a CF member with the preparation of their defence or representations in responding to one or more charges regarding alleged service infractions under the so-called “Military Justice at the Unit Level” (MJUL), my assistance can cost $5,000.00 or more (again, depending upon the scope of disclosure or other related documents, the complexity of the matter, and the specific legal issues arising in the proceeding).

And, if the CF member then wishes to have my assistance with a review of the findings, the sanction(s), or both under Chapter 124 of the QR&O, this could potentially cost another $5,000.00.  Costs can be moderated by my early involvement in a matter.  If I was involved in the initial summary hearing, the cost of my services for the review may be mitigated.  First, I will already be familiar with the evidence that was likely presented and the nature of the client’s defence or representations.  Second, if I was involved in the initial summary hearing (and if my client follows my advice), we may have set conditions for an efficient and effective review.

If the review is unsuccessful, but the decision remains unfair or unreasonable, the CF member’s next course of action would be an application for judicial review before the Federal Court.  The cost of bringing such an application can vary, but $15,000.00 is an apt ‘ballpark’ figure.  Again, if I have been involved in the matter from the outset, the cost may be slightly lower than if I was not involved at earlier stages.  Familiarity with the subject matter can lead to some efficiencies.

However, the principal benefit of engaging counsel early in any process is not a reduction in subsequent legal costs.  Rather, it improves the ability of counsel to set conditions for success in the inevitable judicial review.  When I advise and assist on any statutory process under the NDA, I approach it with what may be characterized as an optimist’s pessimism.  I plan for the worst but hope for the best (even though “… hope is not a method …”).  I assume, from the outset, that an application for judicial review will be necessary in order to obtain justice.  The rationale behind that approach is that it is better to plan for it, and not require that step, than to be obliged to rely on judicial review, but fail to have set conditions for success.

And my approach to all statutory processes under the NDA is to anticipate what may be required, in terms of evidence and argument, if we are obliged to seek judicial review.  And some CF personnel who fail to obtain justice with mechanisms such as grievances fail also on judicial review because they have failed to ensure that the eventual “tribunal record” reviewed by the court contained the evidence and argument that are necessary to demonstrate why a statutory decision was unreasonable or procedurally unfair.

The cost of judicial review of a grievance determination is comparable to the judicial review of a summary hearing review.  And, as with the so-called MJUL, engaging counsel early in the process will typically improve the likelihood of success.  It will also increase a CF member’s overall legal costs.

And to be blunt: it does not guarantee success in the grievance process, the MJUL processes, or the judicial review of any of these decisions.

A CF member who engages counsel to assist with a summary hearing, a subsequent review of the findings and/or sanction(s) imposed by the officer conducting the summary hearing (OCSH), and, eventually, with an application for judicial review before the Federal Court, could be looking at legal expenses in the vicinity of $25,000.00, or more, depending upon the complexity of the matter.  Similarly, a CF member who retains counsel to assist with objections for a remedial measure, followed by a grievance if the remedial measure is imposed, and, eventually, with an application for judicial review before the Federal Court, could also be looking at legal expenses in the vicinity of $25,000.00 or more.

That is not an insignificant amount of money.

And that does not guarantee an outcome desired by the CF member.

So, let’s put those costs in perspective in relation to CF salaries.

At present, a corporal – specifically, a corporal who is does not occupy a Military Occupational Structure Identification (MOSID)that has been designated as a “specialist” occupation by the Chief of the Defence Staff (CDS) – with six years in rank in the regular force earns just under $6,500.00 a month (gross).  That amounts to just under $78,000.00 per year, not counting any allowances or other financial benefits, and before any deductions (including income tax) are made.  A captain (General Service Officer) with six years in rank (i.e., who has just started to receive pay at ‘pay increment 6’ of Table ‘A’ of Compensation and Benefits Instruction (CBI) 204.21) earns $9,579.00 per month, or just under $115,000.00 per year, non-inclusive of any allowances or other financial benefits, and before any deductions are made for income tax or contributions to the Canadian Forces Superannuation Act (CFSA).

Even if this corporal or captain is single, with no dependents, a legal bill of $25,000.00 or more, likely incurred over the course of a year or less, will be a significant financial commitment.

And it is unlikely that some retired colonel will initiate a GoFundMe campaign on their behalf.

And there are no costs awards when a grievor is successful with a grievance or where a CF member succeeds on a review of a summary hearing.  There can be costs awards on judicial review, but these typically amount to approximately 20% of the overall cost of the application for judicial review, and do not factor in the legal costs incurred by the applicant when employing review or remedial mechanisms under the NDA.  And if the applicant is unsuccessful on judicial review, the Attorney General of Canada (who defends against such applications) can, and often will, seek a costs order against the applicant.  Such costs can typically amount to between $1500.00 and $3,000, depending upon the nature of the proceeding.

Where a CF member is facing a significant negative outcome in a process under the NDA, the CF member may be willing – and motivated – to incur such a cost.  If a CF member is facing the disproportionate financial impact of reduction in rank handed down in a disciplinary process by a decision-maker who is neither independent nor schooled in the law, it is likely that the CF member will see the value in retaining counsel.  When a CF member is facing the threat of compulsory release – particularly where that compulsory release will preclude the CF member from receiving an immediate and unreduced annuity under the CFSA – the CF member may be willing to invest several thousands of dollars in retaining counsel to improve their chances of avoiding such a consequence.

But many CF members will balk as spending five, ten, or fifteen thousand dollars in responding to a NoI to place them on a Recorded Warning, or in preparing and submitting a grievance regarding a remedial measure.  Some will be very reluctant to spend even $5,000.00 on assistance with a summary hearing, if they anticipate that the maximum likely sanction will be the deprivation of pay of 5 or 10 days.  Even if they believed that the maximum of 18 days of deprivation of pay would be imposed, they may still decline to retain counsel.[5]

Using our above-mentioned corporal and captain as examples, the maximum amount of deprivation of pay that the corporal would receive would be approximately $3,900.00 (again, not factoring in any allowances to which the corporal may be entitled).  The captain would face a higher financial penalty – approximately $5,750.00.

If that corporal or captain was facing reduction in rank as a sanction, the CF member may be far more motivated to retain counsel.  However, they may not be alive to such a possibility until such a sanction is handed down.  And, by that point, the damage may have been done, and may not be reparable, even with the assistance of counsel.

The cost of retaining counsel is clearly a barrier for CF personnel who wish to safeguard their rights, interests, and privileges in statutory processes under the NDA.  And this barrier applies both to coercive or adverse processes initiated by the chain of command, and to ‘remedial’ processes, such as grievances, initiated by CF members themselves.

And such assistance typically falls outside the mandate of the sole group of legal officers who are assigned to assist individual CF members: Defence Counsel Services (DCS).  Even the assistance that DCS lawyers provide to personnel charged with a service infraction under the MJUL is markedly limited.  They can provide “…  legal advice of a general nature to an assisting officer or accused person on matters relating to summary hearings …”[6].  And this limitation has as much (or more) to do with the number of legal officers assigned to DCS, and the services that they can reasonably be expected to provide in a competent and meaningful fashion, as it does with any interpretation of their mandate under art 101.11 of the QR&O.

 

Second-Order Consequences and Disingenuous Tactics

And that brings me to the second-order consequences.

CF decision-makers and their legal advisors are aware that it can be costly for CF personnel to retain counsel.  I contend that the strategies adopted by CF decision-makers reflect this factor, and other factors that act as barriers to CF personnel obtaining justice.

A brief examination of the relationship between so-called ‘administrative decisions’ and ‘disciplinary decisions’ will help illustrate my point.  And remember, regardless of the nomenclature the chain of command may use, what we are talking about are statutory decisions under the NDA.

We’ll start with a scenario that I have described before: Someone raises a complaint of misconduct against a CF member. An investigation is initiated.  This will inevitably be characterized as a disciplinary investigation of some sort.  Whether it is conducted by the military police (including, possibly, the Canadian Forces National Investigation Service, or CFNIS) or is a so-called “unit disciplinary investigation” (UDI) conducted by the CF member’s chain of command, the investigation will presumably have the hallmarks of a disciplinary investigation.  Specifically, the ‘suspect’ will be informed of their right to silence and their right to consult counsel.  The suspect may be arrested or detained.  And it is made clear that the CF member is suspected of misconduct that may be punished using the Code of Service Discipline (or even criminal prosecution).

The investigation will be concluded, often without the ‘suspect’ offering any statement.  And that is because the subject of a criminal or disciplinary investigation, in which rights under s 7 of the Charter may be engaged, has the right to remain silent during the investigative stage (as well as during subsequent stages) of the process.  And the investigative stage is not the determinative stage in a disciplinary process.  It is not the point at which the CF member, whose rights, interests, or privileges are in jeopardy, has the opportunity to offer evidence or representations to an independent (or, at least, open-minded) adjudicator.  Instead, this is the stage at which an investigator, whose focus is typically adversarial[7] to that of the ’suspect’, is collecting evidence.

Once the investigation is concluded, the relevant CF statutory decision-makers have a choice: they can proceed under the Code of Service Discipline, or they can proceed with administrative measures.

Prior to the bifurcation of the Code of Service Discipline under Bill C-77[8], CF decision-makers appeared loath to proceed with ‘disciplinary’ charges where the accused could elect trial by court martial.  Certainly, if serious criminal allegations were made – particularly for criminal offences that could only be tried by court martial – CF decision-makers would typically proceed with charges in relation to service offences, which would typically be tried by court martial (indeed, is some circumstances, they could only be tried, under the Code of Service Discipline, by court martial).

But for matters that could be characterized as less serious – as ‘disciplinary’, rather than criminal, matters – the chain of command appeared to be quite reluctant to lay charges where an election for court martial could be made.  Such an election would permit representation, free of charge, by Defence Counsel Services, before an independent and impartial military judge presiding over a court martial.  And it wasn’t just the chain of command.  Military prosecutors also seemed loath to proceed with such charges.  On more than one occasion, prior to the bifurcation of the Code of Service Discipline, military prosecutors employed the provision at s 165.13 of the NDA for the disingenuous purpose of avoiding a prosecution of so-called “minor service offences” at court martial.  At the material time, s 165.13 read as follows:

If the Director of Military Prosecutions is satisfied that a charge should not be proceeded with by court martial, the Director of Military Prosecutions may refer it for disposal by an officer who has jurisdiction to try the accused person by summary trial.[9]

 

Objectively, this provision existed as a ‘safety valve’ to ensure that minor matters were not unnecessarily referred to court martial, which was a much lengthier and more expensive tribunal to convene.  If the chain of command believed that a matter was sufficiently serious that the powers of punishment available at court martial were necessary, a CO might apply for referral to Director of Military Prosecutions (DMP), and a “referral authority” would, if he or she concurred, refer the charge(s) to DMP.  If DMP examined the allegations and charges, and concluded that they did not warrant court martial, DMP could refer the charges back to the chain of command for disposition (with an explanation for his decision).

But that example describes circumstances in which it is decision-makers in the chain of command who decide that a court martial is necessary.  It is not an example in which a CF member, wishing to ensure that he or she benefits from a fair and independent adjudication of the allegations, elects (as was the CF member’s right prior to 20 June 2022) to be tried by court martial.

It is difficult to conceive that Parliament enacted this provision so that DMP could interfere with a CF member’s right to elect trial by court martial.  But that is what happened.

These circumstances would typically unfold as follows: A CF member was charged with multiple service offences, some of which gave rise to a right to elect trial by court martial (under, then, s 162.1 of the NDA, amplified by art 108.17 of the QR&O), and some of which did not.  However, since at least one of the charges gave rise to this right, the CF member could elect trial by court martial for all of the alleged service offences, and many CF members did so.  Upon referral to DMP, military prosecutors then ‘non-preferred’[10] the electable charges and referred the so-called non-electable charges back to the chain of command, under s 165.13 of the NDA, to be disposed of at summary trial without an election for court martial.

And if you think that such exercises of discretion look like an abuses of process, then you and I are in agreement.

However, in those circumstances, a CF member would no longer have the assistance of counsel, free of charge, to challenge such a decision.  And that decision would first have to be challenged at the (then) summary trial, where it would be unlikely that the presiding officer, who is not trained in the law and who would not be inclined to find fault with DMP’s exercise of discretion, would give such a challenge due consideration.  Plus, a CF member who is not trained in the law would likely lack the knowledge and skills to advance an argument regarding abuse of process.  It’s unlikely that the CF member’s ‘assisting officer’ would have been much help.  And the CF member would have to exhaust remedies under the NDA prior to seeking judicial review before the Federal Court.  Those remedies included a request for review to the “… officer to whom the presiding officer is responsible for matters of discipline …”.[11]  In other words, the review of that decision would be by the chain of command, who, by that point, exercised exclusive control over how summary justice was meted out.  And, in doing so, they relied upon legal advice from the OJAG.

What are the chances that anyone involved in this decision-making, including the legal advisors, would question whether DMP’s exercise of discretion constituted an abuse of process?

Yeah … that’s what I thought, too.

And that is not the only example of disingenuous decision-making that arose in relation to the exercise of election for court martial prior to the bifurcation of the Code of Service Discipline.  We previously discussed the miscarriage of justice that arose in the Code of Service Discipline matters that gave rise to the application in Noonan v Canada (Attorney General), 2023 FC 618.  From what I have been able to discern, beginning sometime in 2019, CF personnel charged with service offences under s 129 of the NDA, where the allegations did not pertain to “… military training, maintenance of personal equipment, quarters or work space, or dress and deportment …” as defined under (then) art 108.176 of the QR&O, were routinely refused an opportunity to exercise their right to elect trial by court martial, as guaranteed under then s 162.1 of the NDA and amplified at art 108.17 of the QR&O.  [Both of these provisions were repealed on 20 June 2022, when the Code of Service Discipline was bifurcated.]

It is possible that these improper refusals of election began before 2019.  They certainly were not de rigueur over the course of the conduct of summary trials following the amendment of the Code of Service Discipline initiated by the enactment of Bill C-25[12] in 1998.  However, I first became aware of the fact that elections for court martial were being routinely, and improperly, refused for certain charges under s 129 of the NDA in 2019.  And this coincided with a series of courts martial in which the Director of Military Prosecutions and his military prosecutors failed, on several occasions, to obtain convictions in relation to charges laid under s 129 of the NDA. (See: 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/>.)

A trend appeared to develop whereby charges for breaches of discipline would often only be laid where election for court martial could be withheld (or, where the chain of command believed – in some cases, unreasonably – that election for court martial could be withheld).  Otherwise, the chain of command would often proceed with ‘administrative measures’.  Similarly, where evidence gathered in a disciplinary investigation – including by the military police – was particularly weak, charges would not be laid.  Instead, the chain of command would often proceed ‘administratively’.

However, the problem that we have seen arise is that, before the CF member, whose rights, interests, and privileges are in jeopardy, has an opportunity to present any evidence or make any representations, the investigative narrative crystalizes.  The CF member now has to rebut a narrative – obtained without the involvement of that CF member – that is treated as factual truth, as opposed to what it is: an allegation that the coercive power (i.e., the chain of command) must prove based upon a fair and reasonable adjudication or relevant evidence.  And the so-called administrative processes employed by the CF were markedly ill-equipped to test disputed evidence.  In contrast, the Code of Service Discipline – notably courts martial – are expressly designed for this function.

If a CF member could elect trial by court martial, then the CF member would benefit from the robust defence offered by the legal officers at Defence Counsel Services.  And if the evidence was weak, it would not take a criminal law scholar to deduce that a conviction was unlikely.

However, if the matter were dealt with using ‘administrative tools’, such as remedial measures, administrative reviews, and compulsory release, then the chain of command would control the process, including the timing of the process, the release of disclosure, and the decision itself.

And, as an added bonus, there is no right to counsel.  The CF member would not benefit from legal advice and representation free of charge.  And, as we will explore in the Blog posts to come, the chain of command could (and does) take steps to try to exclude or minimize the involvement of legal counsel.

Moreover, once the decision was made – which was invariably adverse to the CF member’s interests – the CF member would still not be able to seek review before an independent court.  First, the CF member would have to exhaust the ‘adequate alternative remedy’ of the CF grievance process.  And, of course, this process is also controlled by the chain of command.  Ironically, despite the fact that remedial measures are typically imposed quickly, and Administrative Reviews following a NoI to recommend release are typically completed within 4 to 12 months, grievances can take years to be resolved.  And, where the grievance concerns a compulsory release, the CF member/grievor will typically receive a determination from the final authority years after the CF member has been released.

And people have the audacity to refer to the CF grievance process as an adequate alternative remedy to litigation.

Some matters were still prosecuted under the Code of Service Discipline, particularly if they were serious allegations.  However, one need only review some of the more notorious allegations raised over the past few years to note that this was not always the case.

And a developing trend over the past five years was the referral of certain matters – specifically, allegations of sexual assault – to civil courts of criminal jurisdiction.  Ostensibly, this was because complainants purportedly wanted such matters to be prosecuted before civil courts.  However, that message was not always consistent.  Some victims and victims’ advocacy groups have indicated that they do not favour this development.  In at least one case, a military prosecutor decided to transfer a prosecution from the military justice system to the civilian criminal justice system, even though significant delay had already arisen in the military justice system and the transfer of the charge to the civilian criminal justice system created further delay without ‘resetting the s 11b clock’. (See: R v Harrison, 2023 ONCJ 392, discussed at Rory Fowler, “R v Harrison, 2023 ONCJ 392: Don’t Be Sold a Bill of Goods (Redux)” (24 September 2023) online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/r-v-harrison-2023-oncj-392-dont-be-sold-a-bill-of-goods-redux/>.)

Despite the theatre of DMP and the Canadian Forces Provost Marshal suggesting that they took the step of referring matters to the civilian criminal justice system based upon their own initiative, it remains clear that the (then) Minister of National Defence, Anita Anand, directed that this would be done, based upon a recommendation by Mme Louise Arbour. (See: Rory Fowler, “Minister of National Defence Announcement – Sexual Misconduct” (5 November 2021) online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/minister-of-national-defence-announcement-sexual-misconduct/>; Rory Fowler, “The MND’s New Policy and the Rule of Law” (19 November 2021) online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/the-mnds-new-policy-and-the-rule-of-law/>; Rory Fowler, “MPCC Criticism of the Military Police” (15 February 2024) online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/mpcc-criticism-of-the-military-police/>.)

But let’s cut to the chase about an undiscussed factor that also likely contributed to this decision.  The conviction rate for sexual assault in the military justice system was lower than the conviction rate for sexual assault in the civilian criminal justice system.  Such a comparison can be problematic, if made in a simplistic fashion, in light of the markedly disparate sample sizes in those respective systems.  Some observers have suggested that this difference is attributable to shortcomings in the military justice system.  And, once that suggestion was made, commentators piled on.

The problem with that conclusion is that it did not address, in a convincing manner, the possibility that at least two other specific factors could well have contributed to the lower conviction rate.

First, there has been no critical analysis of whether the lower conviction rate is attributable, at least in part, to military prosecutors proceeding on charges that did not have a reasonable prospect of conviction or where the investigations by the military police were deficient.  And I have previously offered examples of investigations and prosecutions in which military judges have dismissed charges based upon DMP’s failure to present a prima facie case, or where the actions or decisions of military prosecutors were of questionable merit.

Second, there has been no analysis of the impact of the unique circumstances in the military justice system whereby CF personnel benefit from robust defence, free of charge, by Defence Counsel Services.  This is a not-inconsiderable factor, and it concerns, directly, the issue of access to justice: Rory Fowler, “Impact of Access to Justice on Sexual Misconduct Charges” (23 June 2022) online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/impact-of-access-to-justice-on-sexual-misconduct-charges/>.

Over the course of the past few years, legal officers from Defence Counsel Services have presented complex defences, including applications regarding the nullification of criminal responsibility due to mental disorder (R v Private Waugh, 2021 CM 5021), as well as relatively complex Charter challenges.  These services, if paid for by an accused, would have cost well over $100,000.00.  And even the less complex defences would easily have cost between $25,000.00 and $50,000.00 based upon a moderate fee.  High profile counsel retained for high profile matters will cost much more.

And what no one seems willing to discuss is the impact that (then) Minister Anand’s direction had on the prosecution of sexual assault allegations made against CF members and which were, for the most part, investigated by military police.  By laying charges of sexual assault before civil courts of criminal jurisdiction, CF decision-makers have engineered circumstances in which CF members are now liable for their own legal expenses.  They will almost certainly be precluded from relying on the relevant Legal Aid regimes.  Eligibility for most Legal Aid regimes is tied to income, and even a private or an officer cadet will receive a salary that exceeds the eligibility threshold.  Meanwhile, their military colleagues, who are charged with serious offences like assault, aggravated assault, or trafficking in narcotics – i.e., non-sexual criminal offences – will still be prosecuted under the Code of Service Discipline and will be represented by Defence Counsel Services free of charge.

 

Conclusion

Retaining counsel to assist with any statutory decision-making process arising under the NDA can be an expensive undertaking.  And the more rigidly and aggressively the chain of command uses such processes, the more expensive it can be for the individual CF member who is subject to those processes.  The chain of command receives legal advice from the OJAG free of charge (that is, when they seek such legal advice).  And, while it is likely of some benefit for the chain of command to seek such legal advice, as we have seen, that is no guarantor of fair and reasonable decision-making.  After all, legal advisors are not the CF’s “compliance officers”.

However, ‘assisting members’ are a poor substitute to competent legal counsel.  They typically lack any relevant or adequate legal training.  And, no, I do not consider an online training module, or two, on rudimentary aspects of military law to be ‘adequate legal training’.  An assisting member may not even have as much training, knowledge, and experience as the statutory decision-maker whose decision will affect the rights, interests, and privileges of a CF member, sometimes in significant ways.  And discussions with an assisting member do not give rise to a solicitor-client confidence.

Some statutory decisions under the NDA turn on complex legal principles or issues.  Some don’t.  But if the CF is relying on individual CF members and their assisting members to be able to identify whether complex legal principles or issues do, or do not, arise in a particular matter, there is a flaw in the plan.  In fact, we cannot be confident that the statutory decision-makers will be in a position to make such a determination.  Nor can we be confident that the decision-maker will seek advice when necessary.  Certainly, there are limited circumstances when such decision-makers must seek legal advice.  And, even if they do, follow-on issues concern whether the advice is overly permissive (to the point of being unreasonable) – as was the circumstance in Noonan – and whether the decision-maker follows the advice.

Someone has to safeguard fairness and reasonableness in these processes.  And, unfortunately, it appears that it often falls to individual CF members to defend their rights, interest, and privileges vigorously in order to ensure that a statutory process is fair and reasonable.  Unfortunately, they are often ill-equipped to do so against institutional statutory actors who are supported by the OJAG.  To even approach levelling the playing field, those CF members will often be obliged to turn to privately retained legal advisors.  And they will bear that cost personally.  And the statutory decision-makers, and the legal advisors who support them, are acutely aware that such steps will likely cost those CF members thousands of dollars.

Consequently, it is likely that many unfair, unreasonable, or unjust statutory decisions will arise, unchecked by rigorous scrutiny within the processes established under the NDA.  Some injustices may be caught by grievances or through representations in statutory processes.  But not all will be identified, or corrected.

And, as we will examine in the next couple of Blog posts, even when a CF member resolves to expend limited resources retaining counsel, CF decision-makers and the OJAG will still frustrate attempts by CF members to obtain the full benefit of such assistance.  And many of the obstacles placed in the path of CF members and their privately retained counsel are of dubious merit.

 

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

[2] Consider the discussion regarding delay in the prosecution of LGen Cadieu (ret’d): Rory Fowler, “Delay and the Prosecution of LGen Cadieu (ret’d)” (15 October 2023) online: The Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/delay-and-the-prosecution-of-lgen-cadieu-retd/>.

[3] Queen’s Regulations and Orders for the Canadian Forces [QR&O], arts 15.21, 15.22, or 15.36.

[4] NDA, n 1, s 29; QR&O, n 3, Chapter 7; DAOD 2017-0 and 2017-1.

[5] See NDA, n 1, s 162.7 for the scale of sanctions available at summary hearing.  Chapter 123 of the QR&O, n 3, amplifies some, but not all, of these statutory provisions.

[6] QR&O, n 3, para 101.11(d).

[7] Technically, an investigator should be open to identifying and collecting both inculpatory and exculpatory evidence.  However, in CF disciplinary investigations, there is a heavy emphasis on collecting inculpatory evidence.

[8] An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, SC 2019, c 15.

[9] National Defence Act, RSC 1985, c N-5, as at 19 June 2022.  With the bifurcation of the Code of Service Discipline, and elimination of summary trials, this provision now reads: “If the Director of Military Prosecutions decides that a charge should not be proceeded with by a trial by court martial, he or she shall communicate the decision and the reasons for it, in writing, to the officer or non-commissioned member who referred the charge to him or her, and to the commanding officer of the accused person.”

[10] There was, and is, no express provision under the NDA that refers to “non-preferral”.  Rather, s 165.12 of the NDA directs that, when a charge is referred to Director of Military Prosecutions (DMP), DMP may prefer that charge, or may prefer any other charge.  The provision implicitly presumes that DMP may choose not to prefer a charge.  And, under s 165.15 of the NDA, these decisions may be made by a military prosecutor on behalf of DMP.  And, prior to the bifurcation of the Code of Service Discipline, under the now-repealed art 110.05 of the QR&O, the Governor in Council provided express direction on the steps that DMP was obliged to take when choosing not to prefer a charge.

[11] Queen’s Regulations and Order for the Canadian Forces, as at 19 June 2022, art 108.45.

[12] An Act to amend the National Defence Act and to make consequential amendments to other Acts, SC 1998, c 35.