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Why is DMP bringing prosecutions and appeals without merit?

Could it be because the Canadian Military Prosecution Service (CMPS) is bringing cases to trial without prima facie grounds, predicated upon a true reasonable prospect of conviction, due to a politicized objective?

Recent Example: R v Banting

A little over a week ago, the Court Martial Appeal Court of Canada (CMAC) handed down a its judgment in R v Banting, 2020 CMAC 2.  This judgment was not focused on the substance of the charges that had been brought against the accused, at least, not directly.  Rather, it was an application by the accused (respondent in the appeal by Director of Military Prosecutions (DMP)) for a costs order from the CMAC regarding the appeal.

Some background would be illuminating.

In April 2019, military judge Commander Sukstorf granted an application by Lieutenant J.C. Banting requesting that she dismiss the charge laid against him, under section 129 of the National Defence Act (NDA) for alleged “conduct to the prejudice of good order and discipline”.  It was alleged that Lieutenant Banting used sexualized innuendo or double entendres when he described how to perform various combat medical procedures.  It appears that charges were seemingly laid based upon that assertion that these comments contradicted the directions and prohibitions under Op HONOUR.

However, at para 29 of R v Banting, 2019 CM 2009, Commander Sukstorf held that:

Notwithstanding this, the CDS Op Order – Op HONOUR is not the type of order envisaged under subsection 129(2) [of the NDA]. As designed, it is not intended to be relied upon as the basis of a charge. Most noticeably, Op Honour does not provide parameters nor does it create offences. In short, Op HONOUR and its FRAGOs set out clear direction to the chain of command on how to deal with issues of inappropriate conduct in accordance with extant policy and the law. It does not establish new law or policies.

Consequently, Commander Sukstorf examined the evidence that had been presented by the military prosecutor to determine whether the evidence established prejudice to both good order and discipline.  In so doing, she relied upon the CMAC judgment in R v Golzari, 2017 CMAC 3, which (in the words of Commander Sukstorf) stands for the proposition that “…    absent specific evidence of prejudice, … prejudice will be proven, beyond a reasonable doubt, so long as the totality of the circumstances supports the finding that the conduct in question would tend to, or be likely to, result in prejudice to good order and discipline.”

In granting the defence motion, Commander Sukstorf presented the following summary of her analysis:

[48]    It is a common law principle that offences or crimes must be sufficiently defined to ensure that members have a clear understanding of what acts are prohibited and why. As explained earlier, the Court must focus its assessment on the reasonableness of the inference to be drawn from Op HONOUR. If the facts before the court rose to the level of harassment, which is a term understood in both policy and law, I would agree entirely with the prosecution that pursuant to the CMAC’s guidance in Golzari, a panel could rely upon their own experience and knowledge, including the CDS Op Order – Op HONOUR to infer prejudice.

[49]    However, the allegation before the Court falls short of fitting into conduct addressed by applicable laws and policies. It does not fit within the definition of HISB [“harmful and inappropriate sexual behaviour”] and is situated within a grey zone of conduct which CDS Op Order – Op HONOUR does not address. Further, Op HONOUR does not provide guidance on conduct that falls short of HISB, nor does it assist in identifying when inappropriate language rises to the level where it becomes harmful. As such, the Court cannot expect a properly instructed panel, to rely upon CDS Op Order – Op HONOUR to infer prejudice on the alleged behaviour before the court.

[50]    In conclusion, I must ask myself if the documents in question provide some assistance upon which a panel, properly instructed, may rely upon with their own experience and knowledge to infer prejudice from the allegation before the court. After a review of the Op Order and its FRAGOs, I find that, if all the evidence before the court is believed to be true, the conduct alleged falls outside of that captured by the CDS Op Order – Op HONOUR and as such, it is not reasonable for the panel to rely upon these documents to assist it in inferring the essential element of prejudice.

For conduct to warrant criminal sanction – because that is what sanction under the Code of Service Discipline truly is – the proscribed conduct, including the scope of proscription, must be sufficiently clear to all people who might be subject to such sanction to warrant the power of the state to be brought to bear on that individual.

For Commander Sukstorf, the evidence presented by DMP did not rise to this threshold.

And the CMAC agreed with her.  In November of 2019, the CMAC dismissed the DMP appeal: R v Banting, 2019 CMAC 5.  And it did so in a very brief judgment:

[1]      The panel is unanimous that this appeal should be dismissed. In R. v. Banting, 2019 CM 2009, Military Judge Sukstorf correctly applied the law as it relates to the failure to establish a prima facie case. We share her view there was no evidence presented at the trial upon which a reasonable panel of a General Court Martial, properly instructed, could return a guilty verdict.

[2]      We dismiss the appeal.

This judgment was issued without the court calling upon counsel for the Respondent counsel to offer oral submissions. (R v Banting, 2020 CMAC 2, para 25)

Such a brief judgment tends to give rise to the question whether DMP should have brought his appeal in the first place.  [NB: I am aware that, pursuant to section 230.1 of the NDA, appeals are brought by the Minister or counsel instructed by the Minister.  I am also aware that this role in the Code of Service Discipline does not infringe an accused’s rights under sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms (see R v Cawthorne, 2016 SCC 32).  However, I suggest that, practically, it is DMP, or officers of the CMPS under his direction, who brings these appeals.]

In R v Banting, 2019 CMAC 5, the court did not make an award (or even comment) on costs.  That is usually not a factor in appeals of courts martial, as the accused is often represented by counsel from Defence Counsel Services.

Those of you who follow my Blog will be aware that I hold these counsel in high regard.  Theirs is a challenging position: they are Legal Officers of the Office of the Judge Advocate General (JAG) who could be characterised by some as ‘opposing the will of the chain of command’.  Certainly, while the other 150+ Legal Officers of the Office of the JAG (if we account solely for the Regular Force officers) are oriented to support the ‘command intent’ of the CF, these few officers, by virtue of their role, generally stand in the way of that ‘command intent’, at least where prosecution under the Code of Service Discipline is concerned.  It is not an easy job, and they do it well.  And it is unlikely that most of them will ever receive recognition under the CF Honours and Awards system for their efforts.  Indeed, the better they are at their jobs, the more confident we can all be in the merit and fairness of the Code of Service Discipline.  I suggest, however, that the downside is that, the more proficient they are as defence counsel, the less likely senior CF decision-makers will be to ‘reward’ them for their efforts.

Consequently, I often suggest to CF personnel who are accused of Code of Service Discipline offences, and who contact me to represent them at court martial, to opt instead for representation by Defence Counsel Services.  Paying civilian counsel, like myself, to represent them at court martial can be an expensive undertaking.

However, I am also a strong believer in personal agency and free will – if a CF member wishes to be represented by civilian counsel at their own expense, that is a choice that they may make.

When DMP chose to appeal Commander Sukstorf’s judgment, Lieutenant Banting’s circumstances gave rise to the practical consideration whether he would again seek representation by the same civilian counsel who represented him, successfully, at court martial.  It could have been imprudent (though not impossible) for him to be represented by different counsel.  R v Banting, 2020 CMAC 2 is silent on whether Lieutenant Banting applied to the Appeal Committee, established under article 101.19 of the Queen’s Regulations and Orders (QR&O), for representation by Defence Counsel Services.  Under article 101.20 of the QR&O, a person who has received a ‘Notice of Appeal’ (as Lieutenant Banting presumably had) could apply to the Appeal Committee to be provided with legal services for the appeal.

Thus, I suggest that there are two principal contributing factors why it is particularly rare for an order for costs to arise from an appeal before the CMAC:

  1. It will only be relevant if a CF member is represented by privately retained civilian counsel; and
  1. A costs order will only be issued if an appeal by DMP was frivolous, vexatious, or unreasonable (or, alternatively, if a judgment at court martial was fundamentally flawed and DMP unreasonably opposed the appeal by the accused).

It is uncommon, but not unknown, for CF members to rely on privately retained civilian defence counsel at court martial.  It should be rare for DMP to bring an appeal that is frivolous, vexations, or unreasonable.  After all, DMP, as a public prosecutor, acts as a “Minister of Justice” serving the public interest.  He and his prosecutors are presumed to be skilled and experienced with the Code of Service Discipline and, therefore, ought reasonably to be able to identify when a matter merits appeal.  Therefore, it should be exceedingly rare for the CMAC to consider, let alone award, costs following an appeal.

Yet, here we are.

In R v Banting, 2020 CMAC 2, the unanimous court, with Chief Justice Bell as President, did just that.  The judgment is brief, and I recommend that anyone interested in military justice should take the time to review it.  The court was clear that they did not expressly conclude that the initial prosecution was frivolous or vexatious on the part of DMP.  However, they were equally clear in indicating that the prosecution, and perhaps more pertinently, the subsequent appeal, represented “questionable” decision-making.    It is one thing to bring a prosecution that lacks prima facie merit.  That can happen.  Witnesses can be unpredictable.  The evidence that comes out at trial sometimes differs from statements gathered in an investigation and from what a prosecutor anticipates will arise.  Nevertheless, such circumstances should be rare.

However, for DMP to bring an appeal where such an appeal lacks merit is a questionable tactic.  It appears that in Banting, DMP was seeking to ‘test’ the reach and nature of Op HONOUR in the context of the Code of Service Discipline.  They were unsuccessful at first instance.  So DMP decided to bring an appeal, knowing (or ought reasonably to have known) that Lieutenant Bannister would have to pay for his own legal representation, in order to continue their ‘test’.  As the CMAC concluded: “The test case failed miserably.”

I note, too, that at para 25 of its judgment, the court expressly indicates that the Appellant – DMP (or, perhaps more accurately, prosecution counsel operating under DMP’s direction) – made misstatements both in its written and oral submissions before the court.  The Appellant acknowledged these errors, “… either at the outset of the hearing or in the course of responding to questions from the Court.”  Perhaps I would be less concerned if these misstatements were acknowledged at the beginning of the hearing and had not, in part, required to Court to press counsel for the Appellant in order to precipitate acknowledgement of the misstatements.  However, the Court stopped short of concluding that there had been Crown misconduct.

Other Examples

If Banting were the only recent example of a matter in which DMP and the CMPS were over-zealous in pursuing a prosecution, it could easily be chalked up to an isolated example of, perhaps, too much enthusiasm for a ‘dog’ of a case.

Unfortunately, it is not an isolated example.

In R v Spriggs, 2019 CM 4002, a prosecution was terminated, following an application by the accused, for abuse of process.  Such applications are typically only successful where the facts clearly establish an abuse of process.  DMP brought an appeal of that judgment, only to abandon it two months later with the ambiguous justification that there was “… no reasonable prospect of conviction …” notwithstanding that there was no overt change in the factual circumstances.

In R v Jonasson, 2019 CM 2002, one of two charges against the accused (Drunkenness, contrary to section 97 of the NDA) was dismissed for want of a prima facie case, much as what arose with Lieutenant Banting.

In R v Jonasson, 2019 CM 2003, the remaining charge against the accused (Ill-treating a person who by virtue of rank is subordinate to him, contrary to section 95 of the NDA) was dismissed.  Not only did the presiding military judge – Commander Sukstorf – expressly conclude that she did not believe the complainant, the military judge also indicated that even if she had believed the complainant, the alleged conduct would not have satisfied the elements of an offence under section 95 of the NDA.  In other words, even though the defence had not brought a motion to dismiss this charge on grounds that the prosecution failed to present a prima facie case – and there are a number of reasons why counsel might have chosen not to do so – the military judge was sending an unambiguous message that the second charge also lacked a prima facie basis.

Two months later, Commander Sukstorf dismissed the charge against Lieutenant Banting.  Note too that, on 27 March 2019, Commander Sukstorf had ruled on an initial plea in bar of trial brought by Banting’s counsel (R v Banting, 2019 CM 2008).  Although the military judge did not dismiss the charges as a result of that application, she did grant the application, in part, by ordering the prosecution to “… provide specifics of the alleged incident(s) of the use of inappropriate language in the particulars of the charge, in order to allow the accused to respond appropriately to defend himself.”  In other words, the particulars of the two charges initially laid under section 129 of the NDA, were insufficiently clear.  The result was that the prosecutor withdrew one of the charges and was obliged to amend the particulars.  This, too, should not be a common occurrence.

I have commented previously about R v Stacey, 2019 CM 3017, in which the presiding military judge, Lieutenant-Colonel d’Auteuil, stayed a prosecution due to delay.  While the judgment did not focus on ‘abuse of process’, I contend that a review of the facts presented in Lieutenant-Colonel d’Auteuil’s judgment suggests that, absent delay, abuse of process would have been a meritorious line of argument for the accused.

In R v Stacey, the accused was charged on 24 April 2018 under section 129 of the NDA alleging contravention of the CF Harassment Prevention and Resolution policies.  The complaint had initially been made to the military police on 31 October 2016 (alleging misconduct in 2014 and 2015).  After taking 18 months to complete their investigation – which, unfortunately, appears to be par for the course for the military police – a single charge was laid against Captain Stacey.  After conducting post-charge charge screening, the military prosecutor assigned to the matter withdrew the charge 3 ½ months later.  As is typical with such decisions, the ‘reasons’ provided consisted of an ambiguous statement about a reasonable prospect of conviction.  (and remember, before the charge was laid in the first place, it was subject to pre-charge screening).

It appears that the complainant and her family complained to a variety of senior CF decision-makers, including the JAG.  This resulted in the ‘independent’ DMP assigning a new prosecutor – this time an Assistant Director of Military Prosecutions – to review the charge and accompanying file.  This prosecutor arrived at a markedly different conclusion than the first prosecutor and, almost three months after the charge had been withdrawn, it was again preferred (re-preferred?) against Captain Stacey.

A remarkable tangential factor was that, approximately a week after the initial complaints to senior CF decision-makers by the complainant’s family, DMP promulgated the “Canadian Military Prosecution Service Complaint Policy”.  Over the course of the next three weeks, the Assistant Director of Military Prosecutions who conducted the review appears to have invited the complainant to make a complaint under this new policy, which resulted in the subsequent review of the initial decision to withdraw the charge.

Disclosure following the re-preferral was provided to the defence on 11 December 2018, 21 February 2019, 15 April 2019, and finally on 21 June 2019.  After much discussion, trial dates of 10 to 21 February 2020 were agreed upon and the application for delay was heard in late November 2019.

I have commented previously regarding the matter in August/September 2019 in which a very senior non-commissioned member of the Canadian Forces was erroneously charged – again after a delayed military police investigation – because the investigators of the Canadian Forces National Investigation Service (CFNIS) confused his name with that of their suspect.  And remember, as with all charges laid by the CFNIS, that would have been subject to pre-charge review by a prosecutor serving under DMP.

There was also the appeal by DMP in R v MacIntyre, 2019 CMAC 3, following a trial by General Court Martial in which the Court Martial Panel returned a verdict of not guilty in less than an hour.  While the motives and judgement of the CMPS was not criticized by the court in the manner that arose in R v Banting, based upon the judgment of Bennett JA, on behalf of a unanimous bench, the court did not find the argument presented by counsel for DMP to be compelling.

And what do all of these matters have in common?

If you follow this Blog regularly, you will have likely guessed: Op HONOUR.

The number of abnormalities that I have mentioned may not seem like many, particularly for anyone who regularly works in the civilian criminal justice system.  But consider this: in 2019 there were fewer than 50 matters convened for court martial.  According to the 2018/2019 DMP Annual Report, there are at least sixteen (16) full-time, Regular Force Legal Officers in the Canadian Military Prosecution Service, including DMP, Assistant DMP, two Deputy DMP, Appellate Counsel, Policy Counsel, the Legal Advisor to the CFNIS, and at least 9 Regional Military Prosecutors.  There is also a SMART (Sexual Misconduct Action Response Team) prosecutor, although this may be a secondary duty for one of the enumerated positions.

In two of the courts martial in 2019, representing over 4% of the courts martial that year, the prosecution failed to present a prima facie case.  Two other matters were terminated or stayed due to prosecution actions (abuse of process and delay).  All of these involved allegations to which the chain of command had affixed the label of “Op HONOUR”.  Moreover, in one of these matters, the prosecution pursued an appeal that resulted in the very rare award of costs to the accused/respondent based upon the unanimous conclusion of the CMAC that the appeal represented poor judgment on the part of the CMPS.

My questions, therefore, are these, and I believe that they represent objectively legitimate questions and concerns to raise:

  • Is DMP (and are the prosecutors serving under his direction) truly exercising the independent judgment that he and his predecessors have consistently asserted is a hallmark of that position?
  • Are these decisions predicated upon an objectively reasonable and realistic assessment of the matters brought before them?
  • Or are decisions being made not based upon the legal merits of a case, but based upon the political objective – and expediency – of the oft-cited excuse of ‘optics’? In other words, are dubious prosecutions being brought not because there is a true reasonable prospect of conviction, but because of a desire to demonstrate that DMP and the chain of command are ‘doing something’ in response to the allegations of a ‘sexualized climate’ in the Canadian Forces?

It is one thing to have a ‘zero tolerance policy’.  Even if DMP has not expressly indicated that he is following such a policy regarding Op HONOUR, that is certainly the impression that arises.  And if that is DMP’s policy, then, for the sake of transparency, he should clearly and unequivocally state that such is his policy.

However, if prosecutions are not being predicated upon a true reasonable prospect of conviction, then I suggest that anyone with an interest in military justice needs to be concerned about whether the rule of law is being respected within the Code of Service Discipline.  The more frequently matters are being prosecuted where they lack a prima facie basis for proceeding, the more I suggest the motives of DMP and the prosecutors within the CMPS merit scrutiny by a constitutionally independent bench.


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