Barriers to Legal Representation – Part IV: The Outside Counsel Bogeyman (cont.)

13 September 2024

 

Why is the Office of the Judge Advocate General (OJAG) afraid of outside counsel?

When I began this Blog series, I posed the underlying question: “Do members of the CF require the assistance of privately retained legal counsel when faced with various statutory decision-making processes?”

The answer – an ambiguous “It depends” – requires the amplification offered by an examination of relevant factors, including: (1) the seriousness or potential impact of the anticipated or actual statutory decision; (2) the complexity of the matter; (3) the nature of the rights, interests, or privileges engaged in the decision-making process; and, (4) the potential second-order effects of the decision.

I also observed that the likelihood that CF members will retain outside counsel will increase the more that CF members lack confidence that the relevant statutory decision-maker will approach the matter with an open mind and will make a fair and reasonable decision.

I then explained how the cost of retaining legal counsel can be a significant barrier.  Equally important is how this cost – of which senior CF decision-makers and their legal advisors will be well aware – can influence second order consequences and factors.  This can drive both the policies that are created under the National Defence Act (NDA), and how they are applied.

In Part III of the series, I asked the questions: Why is the OJAG afraid of permitting privately retained counsel – so-called ‘outside counsel’ – to advocate on behalf of their clients, individual CF members?  Why do the OJAG, and the relevant CF statutory decision-makers who are advised by the OJAG, push back so hard on permitting outside counsel from playing any meaningful role in these processes?

I then examined some of the limitations that legal officers in the OJAG (and, sometimes, the statutory decision-makers whom they advise) purport to place on what privately retained counsel may, and may not, do when assisting and representing their clients (i.e., the CF member whose rights, interests, and privileges are engaged by decision-making processes under the NDA).  In particular, I described the policy adopted by the OJAG insisting that privately retained legal counsel must correspond only with the legal officers in the OJAG when assisting, and advocating on behalf of, their clients.  And I offered examples of problematic actions and decisions by legal officers that further limit the capacity of outside counsel to advocate on behalf of their clients.

In the present Blog post, I examine a specific issue arising from positions and decisions taken by both the legal advisors in the OJAG and by the statutory decision-makers they advise, consistently prohibiting privately retained counsel from appearing, as advocates for their clients, before summary hearings.

 

The Policy

The statutory decision-makers who preside over summary hearings (i.e., the “officers conducting summary hearings” or OCSH) typically prohibit outside counsel from appearing before summary hearings and advocating on behalf of their clients.  And I use the term ‘prohibit’ deliberately, because that is precisely what these decision-makers do, notwithstanding that the relevant policy does not expressly prohibit privately retained counsel from appearing.  And they often expressly cite that their legal advisor has informed them that they may, or should, do so.

I suggest that anyone interested in military justice ought to ask themselves why the OJAG and OCSH present such a rigid opposition to civilian counsel appearing before summary hearings.  And I further suggest that the motives that may logically be inferred from their actions do not reflect well on them.

There is no legislative provision that probits civilian counsel from appearing before summary hearings.  And it would be difficult to craft such a provision that would not run afoul of the Canadian Charter of Rights and Freedoms (Charter) or common law principles governing public law decision-making.

The relevant policy statement can be found in the “Military Justice at the Unit Level” (MJUL) Policy.  Specifically, Part 2.3 of Chapter 2 of the MJUL Policy 2.0 states:

2.3 Legal counsel

Service infraction charge

2.3.1 A person charged with having committed a service infraction is not entitled to be represented by legal counsel appointed by the Director of Defence Counsel Services (DDCS), but they, or their [Assisting Member] on their behalf, are entitled to legal advice of a general nature to assist on matters relating to a SH. The officer conducting a summary hearing (OCSH) has the discretion to permit a person charged with having committed a service infraction, upon request, to be represented by civilian legal counsel at their own expense. The OCSH, when addressing such a request, should consider at least the following:

a.  the nature of the infraction;

b.  the interests of the person charged with having committed a service infraction; and

c.  the exigencies of the service.

If the OCSH is of the opinion the person charged with having committed a service infraction should be granted permission to be represented by legal counsel, the OCSH should further consider whether the matter may more appropriately be treated as a service offence allegation.

Service offence charge

2.3.2 When the charge layer provides notification of the charge to the person charged with a service offence, in accordance with QR&O subpara 102.10(2)(c) (Notice of Decision to Lay Charges) the charge layer must confirm with the person charged with a service offence whether they want to be represented by legal counsel, and if so, whether they wish to be represented by legal counsel appointed by DDCS or retained at the person’s own expense. These preferences must be recorded at Part 2 of the service offence charge report.

[Footnotes omitted]

 

And so that we might discuss this issue transparently – something that is often missing in discussions of military justice – I have included the entirety of the policy statement regarding legal counsel retained by CF personnel.

Note that the policy does not state that counsel are prohibited from appearing.  It simply states that “A person charged with having committed a service infraction is not entitled to be represented by legal counsel appointed by the Director of Defence Counsel Services (DDCS).”  The policy cites art 101.11(1)(d) of the Queen’s Regulations and Orders for the Canadian Forces (QR&O).

I suggest that the QR&O are somewhat ambiguous about the role of Defence Counsel Services in that capacity.  “Legal advice of a general nature” can be interpreted fairly broadly – especially if one were to apply the sort of extremely broad interpretation that various legal officers used to apply to (the now repealed) art 108.17 of the QR&O, or which military prosecutors applied to s 165.13 of the NDA when ‘non-preferring’ electable offences and referring ‘non-electable offences’ back to the chain of command, before the bifurcation of the Code of Service Discipline.

But the present discussion is not about the role of Defence Counsel Services.  Our focus is on so-called ‘outside counsel’ retained, privately, by CF personnel facing charges for service infractions.  A CF member “… charged with having committed a service infraction …” may choose “… to be represented by civilian legal counsel at their own expense.”  However, the decision regarding whether such counsel ought to be permitted to appear before the summary hearing rests with the OCSH.  And, based upon my experience over the past two years, it appears that requests by CF personnel to be represented by privately retained counsel before summary hearings will routinely be refused, often for conclusory reasons.

 

Previous Policy

Before the Code of Service Discipline was bifurcated on 20 June 2022, there were no service infractions or summary hearings.  There were only service offences, which could be tried by court martial (as they are now) or by summary trials (the precursors to summary hearings).  As I have explained previously, summary hearings are largely similar to summary trials, with some modifications, none of which benefitted the accused.

The changes include: (1) the nomenclature; (2) the burden of proof; and (3) the removal of the right to elect trial by court martial (i.e., the opportunity to elect to be tried by an independent and impartial tribunal headed by a person who actually understands the law).  And, while service infractions are not offences, and, therefore, do not give rise to a criminal record, that is not really a practical benefit for the accused.  As I explained previously, where service offences were tried by summary trial, without the offer of an election for court martial, the presiding officer would have been precluded from imposing a sentence that would have triggered a criminal record under s 249.27 of the NDA.

Under the summary trial regime, there was a similar policy relating to ‘outside counsel’.  And, as with the present policy, it was not prescribed in law.  Notes (B) and (C) to art 108.14 of the QR&O, as enacted immediately prior to 20 June 2022, stated:

(B) An accused person does not have a right to be represented by legal counsel at a summary trial. However, if an accused person requests such representation, the officer having summary trial jurisdiction has the discretion to:

(i)  permit representation by legal counsel;

(ii)  proceed without representation by legal counsel; or

(iii)  apply for disposal of the charges against the accused person by a court martial.

(C) In the exercise of the discretion referred to in Note (B) of this article, the officer having summary trial jurisdiction should consider at least the following:

(i)  the nature of the offence;

(ii)  the complexity of the offence;

(iii)  the interests of military justice;

(iv)  the interests of the accused person; and

(v)  the exigencies of the service.

An officer having summary trial jurisdiction who is considering the exercise of the discretion to permit representation by legal counsel should consult with a representative of the Judge Advocate General.

 

[NB: Notes to the QR&O are not regulations themselves.  They are, generally, policy statements made by, or on behalf of, the Chief of the Defence Staff (CDS), under his statutory authority to control and administer the CF (NDA, s 18),  to amplify the regulation.]

And if the Notes to (the now repealed) art 108.14 of the QR&O look vaguely familiar, that is because they are.  Like so much of the former summary trial process (other than some inconvenient safeguards for fairness and reliability), this was simply recycled, in a slightly different format, for the MJUL.

Both the former regime for summary trials and the current regime for summary hearings placed the discretion, regarding requests by the accused to have their privately retained counsel appear and to act as advocates, with the CF officer who controlled the process (formerly, presiding officers; presently, OCSH).

The policy statements described, generally, non-exhaustive factors that could be considered when exercising such discretion.  The implication was, therefore, that this discretion should be exercised reasonably, fairly, and not arbitrarily.

However, what was not so clear – and, frankly, what has been ambiguously applied for years – was the threshold for the exercise of such discretion and the presumptive starting point for any such decision.

I suggest that, although CF statutory decision-makers (and the legal officers who advise them) might not expressly articulate their position, past practice has established that they take the position that such a decision begins with the rebuttable presumption that a CF member will not be permitted to be represented by counsel, and that the threshold to justify such a request is particularly high.

In fact, I would go further and suggest that the OJAG and statutory decision-makers take the position that a CF member is prohibited from being represented by counsel unless the OCSH is satisfied, to the level of an unexpressed threshold, that counsel must be permitted to attend and act on behalf of the accused.

I take this position because, in my experience, privately retained counsel have never (or nearly never) been permitted to appear on behalf of their client.  Specifically, whether the matter was a pre-bifurcation summary trial, or a summary hearing, in all matters in which one of my clients requested permission for me to appear and to act as their advocate, the presiding officer or OCSH, upon receiving advice from their OJAG legal advisor, expressly refused to permit me to do so.

And I suggest that the blanket prohibition on permitting privately retained counsel to appear before summary hearings constitutes an arbitrary and unreasonable prohibition that is not supported by the relevant CF policy or the prevailing principles of public and administrative law.

 

A Word or Two on ‘Legal Tests’

When describing decision-making under public law, lawyers and legal scholars will inevitably refer to the ‘test’ for a particular decision-making process.  This will often involve the articulation of relevant principles and factors that constitute the test.  After all, the art of legal analysis is the application of facts to a specific legal framework, governed by articulable legal principles.

There may also be an evidentiary burden for a particular decision.  However, that threshold is distinct from a principle-based test.  I mention this because many statutory decision-makers in the CF confuse those to separate, yet often related, aspects of public law decision-making.

An evidentiary threshold focuses on drawing factual conclusions based upon evidence placed before the decision-maker.  That threshold could be “beyond a reasonable doubt” (as in criminal proceedings) or a “balance of probabilities” (as is the case in most other proceedings, including summary hearings).  There are others, but those are two of the key evidentiary thresholds under the Code of Service Discipline.

The drawing of factual conclusions, based upon relevant evidence, is separate from the process of applying facts to a specific legal test.  And, ideally, factual conclusions would be drawn from evidence that is tested for reliability through such mechanisms as cross-examination of the source of the evidence, particularly where evidence is contested.  The evaluation and weighing of evidence would, presumably, precede the application of facts to a legal test, since the decision-maker must first identify the relevant facts (as opposed to the relevant, untested evidence) prior to applying said facts to a decision-making process or legal regime.

Unfortunately, I have often encountered CF statutory decision-makers who have demonstrated that they do not understand this distinction and, consequently, do not fully understand what they are doing when exercising their statutory duties, powers, and functions.  For example, I have encountered CF statutory decision-makers conducting Administrative Reviews who have confidently decreed: “On a balance of probabilities, I find that your conduct merits compulsory release under item 5(f) to article 15.01 of the QR&O”.

The problem with this statement is that the decision-maker is confusing the evidentiary test that is applicable to the determination of the relevant facts, with the test regarding the appropriate outcome based upon the factual determinations.  The former is determined on a balance of probabilities; the latter becomes the focus of a determination typically based upon principles of reasonableness.  Someone who makes such a statement demonstrates that they failed to understand that there are two distinct decisions being made.  Someone who makes such a statement demonstrates that they do not know what principles actually guide their decision.  Someone who makes such a statement is simply using it as a mantra believing that it insulates their decision if it is subject to further review.

These statutory decision-makers have consistently demonstrated that they do not comprehend the difference between drawing factual conclusions based upon an evidentiary threshold, and the application of facts to a legal regime or test.  And they are entrusted with making statutory decision that directly, and significantly, affect the rights, interests, and privileges of CF members.  And if this doesn’t worry you, then you haven’t been paying attention.

 

The Test – According to the CF

The decisions that I have encountered from presiding officers (summary trials) and OCSH (summary hearings) when my clients have asked to have their counsel appear before the tribunal and to represent them within the full scope of an advocate’s functions have resulted in the same outcome.  First, all such requests were denied.  And the manner of the denial was largely consistent.

The decision-maker in question will inevitably assert that their decision is supported by legal advice from the OJAG.  CF decision-makers like to ‘reinforce’ their decisions with such assertions, principally when the legal advice is consistent with their desired outcomes.  Granted, they won’t typically disclose what that legal advice is, and they are under no obligation to do so.

As an aside, no one below the Ministerial level (which would include the Deputy Minister, but not the CDS) would have the authority to disclose such advice.  But they will brace their decision with the confidence that comes from “… having legal advice that indicates that [they] may do so …”.  Then again, that is what the presiding officers and review authorities asserted in Noonan v Canada (Attorney General), 2023 FC 618, so I tend to take that with a grain of salt.

The decision-maker will also implicitly – though rarely explicitly – assert that the onus lies with the requesting CF member.  And the identification of who bears the onus is a principal component of any legal test.  The decision-maker will assert that “… there is no right to have legal representation …” at a summary hearing.  Consequently, the decision-maker will assert that the CF member accused of a service infraction must demonstrate that he or she should be represented by counsel.

In other words, for OCSH and their legal advisors, the policy (which is not particularly clear or robust on this point) presents a rebuttable proposition that a CF member will not be represented by counsel.  And that proposition can be displaced based upon argument focussing principally (but not solely) upon the factors listed at para 2.3.1 of the MJUL Policy 2.0.  Note, too, that the three enumerated principles reflect three of the five principles that were previously articulated under the (now repealed) Note (C) to art 108.14 of the QR&O.

Note that the two factors that were not reproduced in the new MJUL Policy 2.0 were: “… the complexity of the offence [now, infraction] …” and “… the interests of military justice …”.  Arguably, the complexity of the alleged infraction is part of the “nature of the alleged infraction”, and the interests of military justice will always be a relevant factor when making any significant decision under the Code of Service Discipline.

Part of the problem when this test is applied is that the relevant CF decision-makers appear to interpret the ‘absence of an entitlement’ as a ‘prohibition’.  Those are two markedly different propositions, and the latter tends to suggest a more rigorous threshold for the party that bears to onus to displace or rebut the presumption against representation by counsel.  And I suggest that this overly exigent threshold is one of the reasons why outside counsel are never permitted to appear before summary hearings.

And I suggest that such an approach is both inconsistent with the relevant principles of public and administrative law and unreasonable.

 

How the Test is Applied

OCSH will always – or almost always – refuse to permit civilian counsel to appear.  The most recent Annual Report of the Judge Advocate General, which covered the fiscal period from 1 April 2022 to 31 March 2023, does not offer any data regarding the number of such requests that were made, and the number granted.  Neither did past Annual Reports offer this information.  And, frankly, I doubt very much that future Annual Reports will provide such data, particularly if it demonstrates that such requests are always and routinely refused.  However, the only way the CF and Canadian public will benefit from any transparency on this subject is if the JAG chooses to include such data in his Annual Report.

Moreover, the OCSH will typically provide cursory reasons for refusing to permit counsel to appear before a summary hearing, even where the accused (or the accused’s counsel) articulates detailed argument for why counsel should be permitted to appear as an advocate in an unfettered capacity.

By way of example, in a recent matter, in which mental health issues were relevant, and in which there were potentially contentious aspects of how a service infraction was being interpreted, my client requested that his counsel be permitted to attend and participate in the summary hearing as an advocate.  The OCSH’s reasoning for refusing this request was:

… after having considered the factors outlined in MJUL Policy, paragraph 2.3.1, especially given the nature of the alleged infraction, I am not convinced that this matter rises to the need to have civilian counsel actively participate as would be the case in a matter reserved for criminal or civil Courts.

 

This represents conclusory reasoning.  Were it subject to judicial review, it would not meet the threshold of transparent and intelligible justification that is required to demonstrate a reasonable decision.  However, the OCSH – or, perhaps, more pertinently, her legal advisors – would have been well aware that her decision would not have been subject to judicial review.  It would first be necessary to have sought review from a more senior CF decision-maker under Chapter 124 of the QR&O.

To the OCSH’s credit, she was willing to compromise.  She indicated that she was willing to allow counsel

“… to sit next to [the accused] and advise [the accused] throughout the hearing. If there is a need to adjourn during the course of the hearing so that [the accused] can consult with … counsel, [she was] … prepared to consider such requests as well.”

 

However, the accused was not requesting markedly fettered assistance of counsel.  Anyone with experience with the MJUL will be aware that summary hearings are not conducted in large courtroom-sized spaces.  They are typically conducted in offices or small boardrooms.  Advising clients in such circumstances is difficult, at best.  And it would not have empowered the accused or his counsel to make informed decisions without repeated interruption for requests for short adjournments (which might not be granted).

In short, this was a compromise that wasn’t much of a compromise, followed by conclusory reasons for refusing the accused’s request.

Where more robust reasons are offered by an OCSH (and it would not be a significant challenge to provide more robust reasons), they will often commence with assertions including:

1. Summary hearings are simple in nature;
2. Service infractions are minor in nature and do not constitute offences or result in criminal records; and
3. The accused has the benefit of an Assisting Member.

 

Let’s look at each of those factors in turn.

 

Summary hearings are simple.  Summary hearings are relatively uncomplicated proceedings, when compared to processes such as courts martial.  That does not mean that they are ‘simple’ processes, or that there are not significant rights and interests at stake.  And summary hearings are more simplified than courts martial because the people controlling those processes typically have very limited knowledge and understanding of relevant legal principles.  Their training to entitle them to wield significant coercive and punitive powers consists of online training that can be completed in a day or two, and which is validated by an online multiple-choice test.

Fortunately, the CF doesn’t train people in the use of weapon systems in this manner.  But that doesn’t mean that the maladministration of military justice cannot produce considerable harm.

However, the issue isn’t whether summary hearings are simple.  Note that para 2.3.1 of the MJUL Policy 2.0 applies to requests where charges have been laid in relation to service infractions.  The issue will only arise in the context of a summary hearing.  The underlying presumption is that the policy is articulated within the context of summary hearings.  Asserting that summary hearings are “simple matters” as a justification for consistently refusing requests for private counsel to appear in an unfettered capacity amounts to circular reasoning.

Moreover, the issue is not whether summary hearings are simple processes, the issue is the nature and complexity of the service infraction(s) charged, and the allegations made.  And those can be complex or can arise in complex circumstances.

And let’s not forget that summary hearings can involve allegations of wrongdoing committed against another person, including a CF member.  That poses potentially difficult circumstances when an accused is obliged to cross-examine a witness against her/him/them.  The OCSH can insist on reviewing and vetting potential questions that will be asked by the accused or the accused’s Assisting Member (MJUL Policy 2.0, paras 3.44 to 3.4.6) in order to mitigate against improper or abusive questioning.  However, this policy limitation can also present an unreasonable fettering of the accused’s capacity to make full answer and defence.  And make no mistake: that is a limitation imposed solely by policy.  It is not a regulatory provision.

On the other hand, a professional advocate can provide separation between the accused and a witness or complainant in such cross-examination.  And professional advocates are trained to conduct such cross-examinations, and are regulated to ensure that they conduct themselves in a professional, courteous, and civil manner, and act in good faith (See, for example, Rule 5.1-5 of the Federation of Law Societies of Canada Model Code of Professional Conduct).  This minimizes adverse impact on witnesses called before tribunals.

Service infractions are minor.  This assertion is similar to “summary hearings are simple processes”.  As is the case with the nature of summary hearings, the policy statement at para 2.3.1 of the MJUL Policy 2.0 regarding requests for counsel to appear before summary hearings presumes that the matters involve service infractions.  Consequently, an assertion that “service infractions are minor and, therefore, private counsel need not be permitted to appear” represents circular reasoning and an unreasonably broad prohibition.

While service infractions are, objectively, less serious than service offences or criminal offences, that does not mean that their impact is minor.  A finding that a CF member has committed one or more service infractions can lead to sanctions including “reduction in rank” (NDA, para 162.7(a)).  It can also lead to further consequences under regimes such as Administrative Review under Defence Administrative Order and Directive (DAOD) 5019-2.

This is why OCSH are directed to consider the “nature of the infraction”, and not resort to simplistic conclusory assertions that all service infractions are minor.

Assisting Member.  The rote reliance on the ‘right to an Assisting Member’ as a justification for barring private counsel from appearing is one of the more problematic assertions that can be offered.  And this is due, in no small part, to the inherent contradictory description of Assisting Members.

As noted above, prior to the bifurcation of the Code of Service Discipline, the policy statement regarding requests by an accused to benefit from representation of privately retained counsel before summary trials was found in the Notes to (the now-repealed) art 108.14 of the QR&O.  Article 108.14 was the regulation that described “Assistance to Accused Person”.  This was the regulation, amplified by policy statements in the “Military Justice at the Summary Level” manual, that governed the role of what were then called “Assisting Officers”.  Under that regime, non-commissioned members (NCM) were permitted to be “Assisting Officers” only under exceptional circumstances.  That ‘restriction’ has carried over to the MJUL.

Under the present regime, art 121.02 of the QR&O provides the regulatory provision regarding Assisting Members and is similar to the precursor provision in the now-repealed art 108.14.  This provision is amplified at part 2.2 of the MJUL Policy 2.0.

And the responsibilities of the Assisting Member, as described in the MJUL Policy 2.0 are subject to a degree of double-speak that, unfortunately, is becoming typical in the administration of military justice.

Para 2.26 of the MJUL Policy 2.0 commences with the following statement:

An [Assisting Member] does not act as legal counsel for the person charged.

 

This is an accurate statement.  An Assisting Member need not be, and will rarely be, a licensed lawyer (or paralegal).  Generally, legal officers from the OJAG will be precluded, by virtue of their role and responsibilities as legal officers described under art 4.081 of the QR&O, from acting as Assisting Members.  Exceptions can be, and have been, made – such as when a legal officer is charged by a supervisor within the OJAG.

Presumably, there have been circumstances in which a CF member, who is a licensed legal practitioner, but who is not a legal officer in the OJAG, has either acted as an Assisting Member or who has been requested by an accused as an Assisting Member.  One of the likeliest circumstances in which this might happen is with an officer or NCM of the reserve force component, who is a General Service Officer (or NCM), but is a lawyer in their ‘civilian life’.  And I rather suspect that the senior legal officers in the OJAG get quite agitated when that happens.

But, as a general rule, an Assisting Member is not a lawyer.  So, the Assisting Member is not competent to act as legal counsel.  And my statement is not intended to malign any given Assisting Member’s ability, intelligence, etc.  It is a statement about their standing.  Someone who is not a lawyer (or, in some cases, paralegal) is not licensed to practice law, and is not competent, under the relevant professional regulatory regime, to act as legal counsel.

And what that also means is that the Assisting Member cannot give legal advice and, perhaps more significantly, the discussions between the Assisting Member and the accused are not considered solicitor-client confidences.

It is at this point that legal advisors in the OJAG will be quick to asset: “Yabbut, decision-makers won’t attempt to compel any Assisting Member to disclose discussions with an accused.”

That sounds great in theory.  And the basis for that assertion is that, if it were to happen, it would call the fairness of the MJUL into question and could undermine the entire system.  It would certainly weaken the argument, routinely and speciously trotted out, that Assisting Members are an adequate substitute for a professional advocate who is trained in the law.

But here’s the thing: there’s no basis in law to make that assertion.  There is no recognized Assisting Member-Accused confidence or privilege.  And, while it may be possible, before an actual independent and impartial court to raise the issue of abuse of process if an Assisting Member were called upon to reveal the contents of any discussion, the fact remains that there is no recognized privilege or confidence.  Moreover, there is no express regime – as there is for lawyers – compelling an Assisting Member to safeguard a “client’s” confidences – largely because there is no client, there is no solicitor, and, therefore, there is no solicitor-client confidence.

And, while that is a significant shortcoming (and not the only one) to the oft-cited justification: “You don’t need a lawyer, you have an Assisting Member”, that isn’t where the contradiction arises in the policy statement.

Immediately after the MJUL Policy 2.0 clearly states that an Assisting Member is NOT legal counsel, the Policy then states:

… The role of the AM is to assist, advise and make representations throughout the proceedings and during any review, to the extent that the person charged desires. This involvement by the AM may include assisting with preliminary matters such as the identification of relevant witnesses and evidence and arranging to have such witnesses and evidence available at the SH. Also, the AM may help the person charged prepare for the SH, and may assist them by presenting evidence, questioning witnesses, and making representations on their behalf both at the SH as well as in relation to a review. [Footnotes omitted]

 

Would anyone care to hazard a guess at what a lawyer (or legal counsel) does prior to, during, and after a trial?

This inherently contradictory paragraph is designed to justify refusing to permit CF members from benefitting from the advice and representation of counsel during a summary hearing.

And let’s not forget the subtle threat conveyed in the closing sentence of para 2.3.1 of the MJUL Policy 2.0:

If the OCSH is of the opinion the person charged with having committed a service infraction should be granted permission to be represented by legal counsel, the OCSH should further consider whether the matter may more appropriately be treated as a service offence allegation.

 

On its face, this could be (and, if decisions regarding this issue were ever challenged before the Federal Court, likely would be) characterized by CF decision-makers and legal advisors as an acknowledgement that, if allegations are sufficiently serious, or if the nature and circumstances of an alleged service infraction were sufficiently complex, a CF member should be permitted to be represented by privately retained counsel, then perhaps the matter merits a charge for a service offence, tried by court martial.

However, the disingenuity of this proposition becomes clearer when one considers the broader context.

By the point that ‘representation by legal counsel’ becomes an issue, there have already been a series of decisions by CF statutory decision-makers regarding the seriousness of the allegations and the utility of the MJUL to address the allegations.  In certain circumstances, a charge-layer will be obliged to seek legal advice from the unit legal advisor (QR&O, art 102.07).  Even if they are not obliged to seek legal advice, a charge-layer will likely be encouraged to seek legal advice from the unit legal advisor.  When the charge is referred to a commanding officer or the OCSH, further legal advice may be sought by both the person referring the charge and by the OCSH (QR&O, art 121.07).

Presumably, the seriousness of the allegations, the complexity of the alleged infraction and supporting evidence, and the utility of using the MJUL will have been examined during the steps leading up to the point at which a charge is referred to an OCSH.  And decisions will have been made at each of those steps regarding the utility of employing the MJUL.

Moreover, whether a matter should be treated as a service offence, rather than a service infraction, presumably turns on the seriousness of the allegations, the complexity of the matter, and even whether the 6-month limitation period for summary hearings can be met (NDA, s 163.4).

Therefore, if a decision is made to re-lay a charge as a ‘service offence’ at the point at which an accused requests that their counsel be permitted to participate, the only material factual change is the request itself.  Consequently, the decision to re-lay the charge as a ‘service offence’ would be attributable solely or principally to the accused’s insistence on being represented by privately retained counsel.  In this context, such a decision starts to look increasingly like a threat: “If you insist on being represented by counsel, we’ll lay a charge regarding a service offence, and you’ll be prosecuted by court martial!”

Although, I’m not entirely certain that I would be worried by such a threat.  After all, then the accused would benefit from: a more robust evidentiary threshold; representation by Defence Counsel Services (free of charge); and, adjudication by an independent and impartial tribunal, in which the key presiding official actually understands and applies the law.

That, then, is how CF decision-makers and their legal advisors characterize the test for requests by CF members to be represented by privately retained counsel before a summary hearing.  And there are problems with that characterization and perception, beginning with the apparent presumption that the relevant policy expresses a rigid and nearly insurmountable prohibition against representation by counsel, rather than a mere absence of an express entitlement.

But are there factors that CF decision-makers frequently fail to examine regarding this issue?

 

Factors that are Frequently Ignored

First, while the MJUL Policy expressly asserts that a person charged with a service infraction is not permitted to be represented by legal counsel at DCS, that is simply an explanation of a (particularly narrow) interpretation of art 101.11 of the QR&O.  The MJUL Policy 2.0 does not expressly assert that an accused does not have the right to representation by privately retained counsel.  And, frankly, it couldn’t.  No CF decision-maker or legal advisor can fetter the right of a CF member to retain and instruct counsel.

But they do seem willing to interfere, as much as they believe the are able to do, with the exercise of that right.  Part III of this Blog series offers some object examples of such interference, including a couple of disingenuous approaches.

The MJUL Policy 2.0 also describes the manner in which an OCSH, in controlling the summary hearing process, can impair a CF member’s to fully exercise their right to counsel.

A right to counsel is expressed in section 10(b) of the Charter.  And I am confident that the legal advisors in the OJAG would be quick to point out that s 10 is triggered by arrest or detention.  (And, although I won’t delve into this issue here, there is merit in examining the extent to which a CF member is ‘;detained’, when compelled by threat of further disciplinary action, to attend disciplinary proceedings).  And the rights under section 11 of the Charter are triggered only in a criminal or penal matter.  I suspect that the legal advisors in the OJAG would, again, be quick to assert that the MJUL is a non-penal regime.

I contend that the powers of punishment under the MJUL are significant.  Many of the sanctions that can be imposed under the MJUL will impact a CF member (and the CF member’s family) in significant ways.  Presumably, the legal advisors in the OJAG would be quick to assert that they do not trigger protections under section 7 of the Charter, which states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”  I am inclined to disagree.

The most significant sanction under the MJUL – at least, based upon how they are ranked at section 162.7 of the NDA – is “reduction in rank”.  There isn’t much caselaw under the Code of Service Discipline regarding whether this specific punishment triggers protections under s 7 of the Charter, and which are not satisfied by summary trials or summary hearings, principally because the case law on this subject has arisen from courts martial, where accused have benefitted from all of the protections and safeguards arising before such a tribunal.

And, where that punishment has been used in comparator contexts – principally for police discipline – reviewing courts have held that a penalty of “reduction in rank” does not infringe the “… life, liberty, or security of the person …” as protected in section 7 of the Charter (for example: Brown v Police Complaint Commissioner, 2001 BCSC 1115).

However, Police Services Acts do not have a punishment of confinement to barracks/ship.  That punishment exists as both a punishment for a service offence (NDA, s 139; QR&O, art 104.131) and a sanction for a service infraction (NDA, s 162.7; QR&O, art 123.03).  And it is comparable to a “conditional sentence” (Criminal Code, s 742.1), known more colloquially as “house arrest”.  And conditional sentences most certainly do attract scrutiny under s 7 of the Charter: R v Proulx, 2000 SCC 5.

And, while there is no definitive case law from courts martial, the Court Martial Appeal Court, or the Federal Court, regarding whether “confinement to barracks”, without the right to be tried by a truly independent tribunal, infringes the right to liberty under section 7 of the Charter, I suspect that it is only a matter of time before that issue is placed before the Federal Court.

I note, too, that the military prosecutor in R v Private Robertson, 2020 CM 5012 acknowledged “… that a punishment of confinement to barracks as a minor punishment is similar to a punishment of detention, since it involves a form of deprivation of liberty.” (para 11).  I suspect that the Director of Military Prosecutions (DMP) and other senior legal officers in the OJAG would quickly assert that this admission, as part of submissions regarding a joint submission for sentencing under R v Anthony-Cook, 2016 SCC 43, should not be taken as determinative of DMP’s position on the nature of “confinement to barracks” as a deprivation of liberty.  However, the prosecutor relied upon the paper, “A review of Bill C-77” , drafted by retired Military Judge Jean-Guy Perron as part of his submissions to a Parliamentary Committee regarding Bill C-77.  I suggest this lends greater weight to the assertion that “confinement to barracks” infringes liberty in a manner that warrants scrutiny under s 7 of the Charter.  And if an accused’s rights under s 7 of the Charter are at stake, principles of fundamental justice would generally support the proposition that the CF member should be permitted to be represented by counsel before a summary hearing where that CF member has retained counsel for that purpose.

But one need not resort to citing Charter rights to suggest that the CF’s policy stance on the right to counsel in summary hearings is unreasonable.

Even if we accept the assertion that the MJUL is a non-penal, inquisitorial tribunal, we must still acknowledge that it constitutes an exercise of adjudicative statutory powers that potentially impacts the rights, interests, and privileges of the accused in a significant manner.  While the MJUL Policy 2.0 implicitly suggests that there is not an absolute right to representation by counsel in a summary hearing, that is markedly different than the absolute prohibition that appears to be the reality of CF administration of summary justice.

There is a compelling argument that the CF is taking an unreasonably prohibitive position regarding the role of private counsel in summary hearings.  First, comparable processes nearly universally permit counsel to appear.  Second, the necessity of maintaining the reasonableness of the relevant decision-making requires robust content of fairness, and this extends to permitting CF personnel to be represented by counsel should they desire.

The OJAG takes the position that the new MJUL represents professional, non-penal regulation.  I suggested earlier in this Blog series that it would be a misnomer to suggest that the armed forces are a self-regulated profession.  Unlike actual self-regulated professions, CF members do not select the body that governs them.  While CF members are permitted to vote in federal elections, all Canadian Citizens are able to do so.  But, unlike lawyers, doctors, nurses, etc., CF members do not select the members of their governing bodies from among their numbers, who then enact by-laws, rules of professional conduct, or make other decisions governing the profession.

The “Profession of Arms” is not a self-regulated profession.

One could characterize the “Profession of Arms” as a profession insofar as it is: (a) governed by a specific code enshrining ethical and moral obligations; (b) publicly accountable; and, (c) its members achieve a level of expertise through training and experience.  But it is not self-regulating.

Consequently, the closest comparator for a governance regime is the governance of police and peace officers, notwithstanding that the scope of punishments available to OCSH exceeds the scope of ‘administrative’ punishments available under most Police Services Acts.

But there is a glaring distinction that can be drawn between the disciplinary processes for police (and self-governing professions) and the MJUL: CF members are the only ones who are not entitled (or, permitted) to be represented by privately retained counsel in the relevant disciplinary processes.

Whether one examines the disciplinary processes for lawyers, doctors, nurses, or police officers, all of these processes permit representation by counsel.  Indeed, there is an expectation of such representation.  Self-represented persons (which aptly describes CF members brought before summary hearings) who expressly choose not to be represented by counsel will often raise eyebrows in light of the expectation that the ‘accused’ will be represented by counsel.

Even if the MJUL were examined through the lens of public and administrative law generally, rather than penal or criminal law, the right to counsel in such processes is manifest in common law principles apart from the Charter.  Decisions made within the rubrique of the MJUL must be reasonable and fair.  The content of fairness is governed by several principles including:

1. The nature of the decision being made and process followed in making it;
2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
3. The importance of the decision to the individual or individuals affected;
4. The legitimate expectations of the person challenging the decision;
5. The choices of procedure made by the agency itself.

(Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817)

 

The decisions made under the MJUL can be significant.  The most severe sanction available to an OCSH is “reduction in rank”.  Such a sanction can markedly affect a CF member accused of a service infraction and can significantly alter the trajectory of his or her career and life.  It can affect the lives of their immediate family.  Even lesser sanctions can significantly impact the CF member, including impairing their liberty.

A finding that a CF member has committed one or more service infractions can lead to further administrative actions or measures including compulsory release from the CF.

And the relevant legislative regime does not bar counsel from appearing, notwithstanding that CF decision-makers and their legal advisors appear to interpret the policy as a near-absolute prohibition on counsel.  The legislative regime is silent on the role of privately retained counsel.  It is merely the MJUL Policy 2.0, prepared by the JAG, and issued under the authority of the CDS, that implies that there is no presumptive right to representation by privately retained counsel.

A summary hearing is an adjudication of allegations of wrongdoing by a CF member.  They can potentially involve allegations that could be prosecuted as service offences, even if they are first prosecuted as service infractions (NDA, s 162.6(2)).  They can have a significant impact on the rights, interests, and privileges of a CF member.  And that CF member has a legitimate expectation that he/she/they will be permitted to make full answer and defence.  And the affected CF member is expressly informed by the MJUL Policy 2.0 that their Assisting Member is not legal counsel.  There are no expressly enforceable protections arising from their communication with the Assisting Member.

Indeed, in a recent matter in which I was retained, the assigned Assisting Member began his discussion with my client informing my client that he should not have retained private counsel – and specifically, that he should not have retained me – because that would reflect badly on him.

An absolute or near-absolute prohibition on the appearance of private counsel before summary hearings fails to satisfy this content of fairness.  However, even a more favourable interpretation of the CF policy, that there is a rebuttable presumption against permitting counsel to appear, is not consistent with principles of public and administrative law if the threshold applied to that presumption is anything more than an articulable basis for the request.

There is persuasive case-law – albeit, somewhat dated – that suggests that a request by a CF member to be represented by private counsel before a summary hearing faces a very low threshold.  I suggest that the threshold is so low that it is satisfied where a CF member presents an articulable basis to justify such representation.

I suggest that one of the principal flaws in how CF decision-makers approach this issue at present is that they focus on how the presence of counsel will affect them or the process.  And that is not the proper test.  After all, the decision-makers benefit from the assistance of counsel – free of charge – from the OJAG.  Consequently, the focus should be on how the request affects the CF member whose rights, interests, and privileges are at stake in the proceeding: i.e., the accused.

Returning to the policy guidance in the MJUL Policy 2.0, OCSH are instructed to consider: the nature of the infraction; the interests of the person charged with having committed a service infraction; and, the exigencies of the service.  The interests of the person charged are often given negligible, if any, consideration.

Both CF personnel requesting the benefit of representation by counsel, and the OCSH, would be well advised to consider the judgment of the British Columbia Supreme Court in Joplin v Vancouver Police Department, 1982 CanLII 698, (1982) 144 DLR (3d) 285 (BC SC), aff’d Joplin v Chief Constable, City of Vancouver Police Dept., 1985 CanLII 405, (1985), 20 DLR (4th) 314 (BC CA).  This was a matter in which a police officer, accused of wrongdoing in the performance of his duties and functions as a peace officer, was subject to the relevant disciplinary process under the Police Services Act of British Columbia that was in force at that time.  The police officer eventually brought an application (referred to as a “petition”) seeking the right to counsel at certain disciplinary proceedings.

I draw your attention to paras 69 to 83 of the judgment of the Chief Justice of the BC Supreme Court (upheld by the Court of Appeal).  In particular, consider the following from para 75:

[75]           When the Lieutenant Governor in Council established a formal legal procedure he could not, with fairness, leave out the most important safeguard in the legal process, that is, the right to counsel. I am satisfied that justice and fairness cannot tolerate a procedure where a layman is expected to deal with legal concepts which are strange to him, and at the same time advise himself objectively.

 

The Chief Justice of BC (and, subsequently, the Court of Appeal) held that where a matter is serious and has serious consequences, a person accused of disciplinary misconduct could not fairly be denied the assistance of counsel throughout the process.  And, for clarity, the court included fines, deprivation of pay, and reprimands as “serious consequences” (see para 70 of the Chief Justice’s judgment).

Note, too, that the Chief Justice rejected the argument for an exception in the context of maintaining a “disciplined force”:

[78]           I also reject the “disciplined force” exception insofar as the right to counsel is concerned. It is implicit in the foregoing that I do not believe right-thinking citizens would conclude the right to counsel in the circumstances of this case should be subject to a “disciplined force” exception. While I have the greatest respect for Lord Denning M.R., I do not agree that a policeman should have less right to protect his livelihood than a dog trainer. I agree entirely that many disciplinary questions within a disciplined force may best be settled on a “man to man basis”, but that most useful option is lost when the decision is reached to lay a charge and proceed with a legalistic procedure.

 

These judgments are not binding on the CF.  They are also dated – they are likely older than many personnel presently serving in the CF.  But, in the absence of any judgments that expressly address the MJUL, this judgment, and the affirmation of the BC Court of Appeal, are highly persuasive.  Moreover, I contend that they are dated because various provinces took the lesson in the judgments to heart and ensured that their disciplinary proceedings permit counsel to appear.

CF decision-makers may wish to continue to reject requests for representation by counsel in most, if not all, summary hearings.  However, if they do so, they may wish to take a lesson from the penultimate paragraph in the Chief Justice’s judgment:

[82]           I wish next to consider this case in its narrower perspective, because I am mindful of Mr. Arvay’s concern that striking down s. 18(2) [of the BC Police Services Act] may lead to the awkward situation where it may be asserted that, there being no absolute right to counsel at common law, the hearing officer may still have a discretion to refuse the petitioner the right to counsel. If such should occur, it may be necessary to re-litigate this case and indeed other subsequent cases. I do not think that should be necessary because I have already found that a denial of counsel in these circumstances amounts to a breach of the principles of justice, and I would expect the same result in this and other cases if the right to counsel is denied. For greater certainty in this case, therefore, I propose to follow the course taken by Addy J. in Husted, also to prohibit the hearing officer in this case or any other hearing officer from proceeding with the charge unless the petitioner is allowed to be represented by counsel, if he wishes, provided reasonable and timely arrangements are made for such representation. I am not directing that there must be counsel if, in the exercise of his reasonable discretion, the hearing officer decides to proceed in the absence of counsel should proper arrangements not be made in that behalf.

 

Conceivably, there may be circumstances in which permitting counsel to appear would be difficult.  That is why one of the factors for an OCSH to consider is the “exigencies of the service”.  If the disciplinary matter arises while on deployment, it may well be difficult to permit counsel to appear.  However, in light of modern telecommunications, including the fact that some summary hearings make ample use of Video-Teleconferencing platforms, it should only be rare exceptions in which it would not be feasible to permit privately retained counsel to appear, if only ‘virtually’.

And, in light of what could be construed as subtle policy direction that is skeptical of the merits of the role and involvement of privately retained counsel, I feel compelled to offer some clarity regarding the role of legal counsel generally.

The goal of any advocate appearing on behalf of a client is to assist the tribunal in arriving at a fair and reasonable outcome.  Lawyers owe an obligation to their clients to provide legal services that are competent, courteous, thorough, and prompt (see, for example, Rules 3.1-2 and 3.2-1 of the Federation of Law Societies of Canada Model Code of Professional Conduct).  Such legal services must also be honest and candid (Rule 3.2-2). As an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law (Rule 5.1-1).  And lawyers must also treat tribunals before which we appear with candour, fairness, courtesy, and respect (Rule 5.1-1).  Ultimately, the goal of counsel is to encourage public respect for, and improve, the administration of justice (Rule 5.6-1).  Our obligations to our clients are not mutually exclusive of the role we play in assisting tribunals with the administration of justice.

To be candid, I am often left with the impression that the resistance that I and colleagues frequently encounter, when attempting to assist CF personnel with statutory processes under the NDA, is derived from a misapprehension that we are somehow a barrier to the fair, reasonable, and efficient functioning of those statutory processes.

It is possible that CF decision-makers and their legal advisors are concerned about counsel who are not familiar with military justice, and who might appear before a summary hearing and proceed as if it were a superior court of justice.  I suppose I indulge in the conceit that they ought not to conclude that a lawyer in my position would fail to understand the nature and scope of MJUL.  But this issue is not solely about me.

I believe that the CF statutory decision-makers and their legal advisors sometimes forget that any counsel appearing before any tribunal has an obligation to be competent in doing so.  I do not practice Family Law, because that is not my field.  So, it is markedly unlikely that I would find myself appearing before a Family Court.  I suggest that decision-makers must start with the presumption that counsel who permit themselves to be retained in such matters have sufficient knowledge and understanding of the processes to do so competently.  And if they are not competent to do so, or if they misconduct themselves before the relevant tribunal, there are recourses available to both the OCSH and any legal officer involved in the matter.  However, I would recommend against making specious complaints.

 

Conclusion

CF members serve in a markedly asymmetric relationship with the Crown.  They are subject to myriad coercive processes under the NDA, including, but not limited to, the Code of Service Discipline.  And the Code of Service Discipline was amended in 2022 (after a 3-year delay implementing Bill C-77), removing several safeguards to fair and reasonable decision-making.

It’s understandable that some CF members will seek counsel to assist them with these statutory processes.  They will do so, notwithstanding that such assistance represents significant personal cost.  They will do so even though people in their chain of command may discourage them from retaining counsel.  Some of those people may expressly discourage them from retaining specific counsel.  And make no mistake: such actions are improper.

But once CF members make the decision to retain counsel, at not-insignificant personal expense, in order to ensure that the requisite procedural fairness and reasonableness are respected by CF decision-makers, it is problematic for those decision-makers to refuse, consistently, to permit CF members rely on the full range of services from the counsel they retain.

Although the legislative basis for the Code of Service Discipline does not create an express right to representation by counsel before summary hearings, the manner in which the current MJUL Policy is interpreted appears to have created an absolute (or near-absolute) prohibition on counsel appearing before such tribunals.  That is inconsistent with both the underlying legislation and even the vague policy that has been issued by the CDS and the JAG.  It is certainly inconsistent with prevailing public and administrative law principles.

We are left to ponder why CF decision-makers, and their legal advisors, consistently and adamantly refuse to permit privately retained counsel from appearing before summary hearings.   Why are they so worried about the involvement of outside counsel in these processes?  If the processes are as reliable, fair, and reasonable as we are repeatedly told, then what is the issue?  Are they afraid that there will be too much reasonableness, or too much fairness?  Resistance to the involvement of outside counsel can only impair, and not improve, such processes.  And the continued and consistent refusal to permit privately retained counsel from participating in summary hearings undermines the confidence that CF personnel, and the Canadian public, can have in this statutory process.