Thursday, December 8, 2016

A worrying command centric decision regarding sexual offences and harassment by Canada's Chief of the Defence Staff

Hon. Gilles Létourneau
In a CTV National News release of December 2 and 4, 2016, entitled Military advances fight against sexual misconduct, [] the Canadian Chief of the Defense Staff (CDS), General Jonathan Vance, in reaction to victims complaints that the military courts were not handing down harsh enough punishments to deter bad behavior, told CTV’s reporter Mercedes Stephenson “that he will now discharge anyone found to have sexually harassed or harmed another member of the military, even if he or she has struck a plea deal in a military court. This statement and the policy which has yet to be put down on paper raise worrying legal concerns.
Before I address them, I should mention that, according to the news release, “29 members of the military have already been forced out due to sexual misconduct….and two more soldiers who faced courts martial on sexual assault charges but pleaded guilty to a lesser charge of disgraceful misconduct and had their sexual assault charges stayed….will be served with “intent to release” them on a compulsory manner. In other words they will be kicked out of the military.


It is a fact that often guilty pleas are entered after a plea bargaining as to charges and/or sentences. In respect of sentence deals, the Supreme Court of Canada in the recent case of R. v. Anthony-Cook 2016 SCC 43, [] rendered on October 21st 2016, underlined the importance of plea bargaining in the administration of criminal or penal justice. At par.1 and 2, Moldaver J., on behalf of a unanimous Court wrote:
 [1] Resolution discussions between Crown and defence counsel are not only commonplace in the criminal justice system, they are essential.  Properly conducted, they permit the system to function smoothly and efficiently.

 [2] Joint submissions on sentence — that is, when Crown and defence counsel agree to recommend a particular sentence to the judge, in exchange for the accused entering a plea of guilty — are a subset of resolution discussions. They are both an accepted and acceptable means of plea resolution.  They occur every day in courtrooms across this country and they are vital to the efficient operation of the criminal justice system.  As this Court said in R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, not only do joint submissions “help to resolve the vast majority of criminal cases in Canada”, but “in doing so, [they] contribute to a fair and efficient criminal justice system” (para. 47).

Under Canadian law there were differing views among judges as to the test against which to measure the acceptability of a joint submission on sentence. The first test was fitness. A judge may depart from a joint submission if the proposed sentence is not fit.

 According to a second test, which is in fact a variation of the first, a judge could not depart from the submission unless he or she concluded that the proposed sentence is demonstrably unfit.

Finally the third test, the one adopted by the Supreme Court of Canada, is the public interest test. It means that a judge can depart from the joint submission if the proposed sentence “would bring the administration of justice into disrepute, or is otherwise not in the public interest”: see par. 27 to 31 of the decision. Then the Court went on to explain what the public interest threshold means: see par.32 to 34 of the decision. From par. 35 to 43 the Court goes on to explain why a stringent test is required.

Finally, in par. 44 Justice Moldaver goes on to explain why a high threshold is not only necessary, but also appropriate. He writes:

[44]  Finally, I note that a high threshold for departing from joint submissions is not only necessary to obtain all the benefits of joint submissions, it is appropriate.  Crown and defence counsel are well placed to arrive at a joint submission that reflects the interests of both the public and the accused (Martin Committee Report, at p. 287).  As a rule, they will be highly knowledgeable about the circumstances of the offender and the offence and the strengths and weaknesses of their respective positions.  The Crown is charged with representing the community’s interest in seeing that justice is done (R. v. Power, [1994] 1 S.C.R. 601, at p. 616).  Defence counsel is required to act in the accused’s best interests, which includes ensuring that the accused’s plea is voluntary and informed (see, for example, Law Society of British Columbia, Code of Professional Conduct for British Columbia (online), rule 5.1-8).  And both counsel are bound professionally and ethically not to mislead the court (ibid., rule 2.1-2(c)).  In short, they are entirely capable of arriving at resolutions that are fair and consistent with the public interest (Martin Committee Report, at p. 287).

Justice Moldaver’s comments are relevant in the context of the statement made by the CDS and his intended policy to automatically kick out of the Forces those who plead or are found guilty even though they are properly and duly sentenced pursuant to a joint submission.


The CDS actual and intended move is a clear snub to the professional work accomplished by both the military Prosecution and the Defense Services. Understandably but unfortunately the Prosecution and Defense Services’ lack of open and public reaction to the CDS statement speaks highly to their subordination to and lack of independence from the chain of command. After all they fall under the direct supervision of the Judge Advocate General (JAG) who is the head of the legal chain of command and who controls their career in terms of assessment of their performances, promotions, postings, etc.

It is also a snub to the judicial function of the military judges and to the military judges themselves who cannot claim full and complete independence from the chain of command. Although they are judges, they are first and foremost soldiers with a rank much lower than the rank of many officers, including the JAG who, notwithstanding his title Judge, is not a judge: he is a senior counsel.

The CDS statement not only undermines the state of the law as established by the Supreme Court of Canada, but is also undeniably source of unfairness to an accused who pleads guilty pursuant to an agreement on a joint submission. As the Supreme Court pointed out, in pleading guilty the accused waives his constitutional rights to the presumption of innocence and to a fair trial in return for a just and appropriate sentence assessed and accepted by prosecution and defense professionals.


The administrative route of automatic dishonorable release [Pursuant to Queen’s Regulations and Orders 15.01 - Service Terminated] from the Armed Forces is likely to generate additional costs and court delays. First of all, it is most likely that members of the military will now be reluctant to plead guilty knowing that their conviction, in addition to the sentence, will result in their dismissal from the Forces. Hence a likely increase in the number of trials to seek to avoid dismissal.

While an administrative release (or discharge) is an option certainly available to the CDS in appropriate circumstances, it is a far cry from his saying that “as far as I’m concerned, I’m happy if they leave our ranks permanently.” Such a practice will not satisfy the societal principle of adhering to the rule of law and the principles of fairness and equity. Release decisions fall within the ambit of administrative law and the underlying legal principles. As the Final Authority in the grievance process, the CDS is expected to reach each one of his decisions on the basis of natural justice and the requirements of procedural fairness and not in accordance with a predetermined autocratic outcome.  His decisions in this regard are potentially subject to judicial review by the courts to ensure that his powers are exercised in the appropriate manner.

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