Criminal Law Case
R v MacPherson et. al.: Judicial Independence Redux
October 27, 2020
Defence Administrative Order and Directive 9005-1 – Sexual Misconduct Response
November 18, 2020

R v Christmas – Beware the Ghosts of Judgments Past    


On 10 November 2020, in his decision in R v Christmas,  the Deputy Chief Military Judge (DCMJ), and Acting Chief Military Judge, Lieutenant-Colonel (LCol) L-V d’Auteuil, granted a stay of proceedings in response to the accused’s application pursuant to paragraph 11(d) of the Canadian Charter of Rights and Freedoms (the Charter), asserting that courts martial were not independent and impartial tribunals so long as military judges were subject to the disciplinary jurisdiction of the chain of command for the Canadian Forces (CF).

In so doing, the DCMJ drew a conclusion that was markedly contrary to the judgment of his fellow military judge, Commander (Cdr) Sukstorf, in R v MacPherson and Chauhan and J.L., 2020 CM 2012 [MacPherson].  The issue of judicial comity was necessarily raised in this application, and LCol d’Auteuil held that judicial comity required him to follow the line of reasoning begun in R v Pett, 2020 CM 4002 (per Cdr Pelletier) and R v D’Amico, 2020 CM 2002 (per Cdr Sukstorf), and to decline to follow that of Cdr Sukstorf in MacPherson.  In so doing, LCol d’Auteuil held that the judgment in MacPherson represented a derogation from the prior series of judgments this year that focused on the independence and impartiality of the military judiciary.  (My examination of the judgment in MacPherson can be found here.)

As in MacPherson, the application in Christmas focused on the effect of Canadian Forces Organization Order (CFOO) 3763, amplifying Ministerial Organization Order (MOO) 2000007, which, pursuant to section 17 of the National Defence Act (NDA), establishes the Office of the Chief Military Judge (OCMJ).

Article 4.091 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) expressly prohibits the Chief Military Judge (CMJ) from exercising “…the powers or jurisdiction of a commanding officer or an officer commanding a command in respect of any disciplinary matter or a grievance.”  However, (and, frankly, contrary to the conclusions in the series of judgments commencing with Pett), since military judges are subject to the Code of Service Discipline, and may also submit grievances, under the statutory regimes for the Code of Service Discipline and the adjudication of CF grievances, it is necessary for there to be an officer appointed to perform the functions of a commanding officer.

Consequently, at CFOO 3763, the CDS directs that all officers (i.e. military judges) posted to the OCMJ, fall within the disciplinary jurisdiction of the Base Commander of Canadian Forces Base (CFB) Ottawa-Gatineau.

In Christmas, LCol d’Auteuil appears to have concluded that even though the Chief of the Defence Staff (CDS) had suspended his impugned Designation Order of 2 October 2019 (which had been the subject of applications from Pett to R v Iredale, 2020 CM 4011), the impact of CFOO 3763 has substantively the same effect as the impugned Designation Order.  It places the military judiciary under the disciplinary authority of the Executive (specifically, the CF chain of command).  Consequently, this undermines the independence of the military judiciary to the point that an accused does not benefit from the independent and impartial tribunal guaranteed under paragraph 11(d) of the Charter.

As arose in the applications in R v Edwards, 2020 CM 3006, R c Crépeau, 2020 CM 3007, R c Fontaine, 2020 CM 3008, and R v Iredale, LCol d’Auteuil ordered a stay of proceedings in Christmas.  It appears that he was not prepared to revisit the graduated remedial approach that the military judiciary took starting with Pett and concluding with Iredale.  I suspect that LCol d’Auteuil was disinclined to grant the CDS such deference in light of the relatively transparent message conveyed in the CDS Suspension Order of 15 September 2020: the CDS reasserted his disciplinary jurisdiction over military judges, through the Commandant CFB Ottawa-Gatineau, notwithstanding that such influence of the Executive over the military judiciary was the central fault that obliged the suspension of the impugned Designation Order of 2 October 2019.

Military Judge, Cdr Pelletier, was scheduled to hear motions relating to five separate accused, on 12 November 2020.  The scope and nature of these motions were the same as those raised in MacPherson and Christmas:  Notwithstanding that the CDS had suspended his Designation Order, CFOO 3763 serves a similar purpose, placing the military judiciary under the disciplinary authority of the CF chain of command (i.e. the Executive).  Consequently, like the now-suspended Designation Order, CFOO 3763 undermines the independence of military judges, resulting in a breach of the accused’s right under paragraph 11(d) of the Charter to a trial before an independent and impartial tribunal.

However, in light of the judgment of LCol d’Auteuil in Christmas, Cdr Pelletier directed that he would only hear the motion in R v Sergeant Proulx.  Presumably, Cdr Pelletier limited the motions that he would hear on 12 November 2020 in order to permit the CDS to respond to the impact of the judgment in Christmas.  Such an approach is reminiscent of the approach adopted by Cdr Sukstorf in R v Bourque, 2020 CM 2008 (see also my examination here). However, in light of the reluctance to act that the CDS demonstrated when the Designation Order was repeatedly challenged (see my analysis here), and the not-so-subtle wording that the CDS incorporated into his Suspension Order, there may yet be reluctance by the CDS to cede his putative disciplinary jurisdiction over military judges.

As  a result of these conflicting judgments, two things are certain: the scope and argument of the appeals in R v Edwards, et. al. (CMAC-606, CMAC-607, CMAC-608, and CMAC-609), which will likely be heard by the Court Martial Appeal Court in January 2021, will expand, and uncertainty regarding the application of the Code of Service Discipline will continue.

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