Another step towards the protection of the accused before military courts

In The Queen v. Wehmeier 2014 CMAC 5, the Court Martial Appeal Court of Canada (CMAC) enhanced the protection of civilians prosecuted before military tribunals. Mr. Wehmeier was a former member of the Canadian Forces (CF). He was hired by the CF for two months to work as a “peer educator” at a “third location decompression center” operated by the CF in Germany. The Center’s function was to assist CF members returning from Afghanistan.

While there he attended a beer festival, allegedly became intoxicated and committed offences against three members of the CF. He was immediately repatriated to Canada and charged with the following ordinary criminal offences: sexual assault contrary to s. 130 of the National Defence Act (Act) and s. 271 of the Criminal Code of Canada (Cr.C.), uttering threats contrary to s. 130 of the Act and par. 264.1(1)(a) of the Cr.C., and assault contrary to s. 130 of the Act and s. 266 of the Cr.C.

The Chief Military Judge who heard the case terminated the proceedings but without adjudicating the merits. He was of the view that they amounted to an abuse of prosecutorial discretion. The Supreme Court of Canada has recognized that there are two forms of abuse of process which can be caught by s. 7 of the constitutionalised Canadian Charter of Rights and Freedoms (Charter). In essence, s.7 gives everyone 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. The two forms of abuse of process caught by the provision are prosecutorial conduct affecting the fairness of a trial and prosecutorial conduct that contravenes fundamental notions of justice and thus undermines the integrity of the judicial process: see R. v. O’Connor (1995) 4 S.C.R. 411, at par. 73; R. v. Nixon (2011) 2 S.C.R. 566, at par. 36.

The CMAC also came to the conclusion that the proceedings should be terminated without adjudicating the merits, but for different and more fundamental reasons. It found that there was no prosecutorial abuse of discretion, but that this was not the end of the matter because a breach of s. 7 of the Charter can occur even if there is no abuse of prosecutorial discretion in the laying and prosecution of a charge. At par. 49 of its reasons for judgment, the CMAC ruled that “the principle of prosecutorial discretion cannot shelter the fruit of the exercise of that discretion from review on substantive grounds.” At pars. 54 and 55 it endorsed the following principles as regards the prosecution of civilians before military tribunals:

[54] As noted earlier in these reasons, in Wehmeier 2 the Chief Military Judge found that Parliament’s objective in enacting paragraphs 60(1)(f) and 61(1)(b) of the NDA was that Canada retain primary jurisdiction over CF members and the persons who accompany them in order to protect their interests and have them tried according to our law and not according to foreign penal law. The provisions subjecting civilians to the CSD were intended to limit the jurisdiction of military courts such that jurisdiction would only be exercised if it was “absolutely essential or in the interests of the civilians themselves that they do so”: Wehmeier 2 at paragraph 24.

[55] In his memorandum of fact and law, the respondent reviews the particular needs of military discipline as it relates to accompanying civilians. He summarizes his conclusions at paragraph 51, a summary that we find correctly states Parliament’s intent:

The existence of Canadian military jurisdiction would allow the military to ensure the safety of our people abroad by affording it some enforceable control over civilians, help limit the reach of repressive foreign jurisdiction and extend the application of Canadian law and procedures to the civilians in foreign places. In all cases, Parliament’s intent was that military jurisdiction would only be exercised over civilians accompanying the forces when it was absolutely necessary or in the best interests of the civilians themselves to do so.

Since the accused had been repatriated to Canada within five days after the occurrence of the alleged offences, the prosecution in the military courts was not necessary to protect the accused from foreign penal jurisdiction. The rationale for the prosecution before a military tribunal did not explain why a prosecution before a military as opposed to a civilian tribunal is necessary. “It is not sufficient,” the CMAC said, “to simply assert the public interest in having charges laid in the military justice system.” At par. 58, it found that the prosecution in the military justice system was arbitrary because it lacked “any connection with the objectives sought to be achieved by making accompanying civilians subject to the CSD (Code of Service Discipline).”

In addition, the CMAC found that the proceedings in the military justice system were not in accordance with the principles of fundamental justice because of the disproportionate effect on the individual relative to the state’s interest in the proceedings. Such effect arises from the accused’s loss of certain procedural rights when prosecuted before military tribunals: the right to be tried by a jury, the right to have the prosecutor elect to proceed by summary conviction as well as the right to benefit of the range of sentencing options available in the Cr.C.

The decision is a major breakthrough in the search for equality of rights under the Charter, especially for civilians, including teenagers, who accompany members of the CF. The time has come to ensure that the overall interests of justice should prevail when what is at stake is either the prosecution of ordinary criminal offences as opposed to purely military disciplinary proceedings or, as in this case, the prosecution of civilians.

There is, however, one disturbing conclusion in the CMAC decision. After having said at par. 28 of its reasons that prosecutorial discretion was a term of art which refers to “the use of those powers that constitute the core of the Attorney General’s office and which are protected from the influence of improper political and other vitiating factors by the principle of independence,” the CMAC went on to say that it was satisfied on the record before it that the existing differences between the position of the Attorney General and the Director of Military Prosecutions  (DMP) “do not justify a conclusion that a different scope of prosecutorial discretion applies to the DMP”: see par. 31.

It should be recalled that under the Act, both the Prosecution and the Service Defence fall under the jurisdiction of the Judge Advocate General who is the commander of all military lawyers, the supervisor of the military justice system and the legal adviser to the Minister of National Defence and the chain of command. It should also be recalled that he is not a judge, that he is not elected, that he is not accountable in the House of Commons and that his appointment is political.

Finally it should be kept in mind that the Attorney General is given broad discretionary prosecutorial powers because he is the ultimate keeper of the public peace, a responsibility conferred upon neither the Judge Advocate General nor the Minister of National Defence. In addition, by constitutional convention the Attorney General is not bound by a decision of Cabinet in the exercise of his powers and duties to administer justice in Canada. No such power is given to the Minister of National Defence. It is an open secret that, contrary to the conditions characterizing the Director of Public Prosecutions in Canada, the Director of Military Prosecutions is far from being independent from the chain of command and “protected from the influence of improper political and other vitiating factors by the principle of independence.”

These fundamental and principled differences and guarantees should be kept in mind in future cases when reviewing the prosecutorial discretion of the Director of Military Prosecutions.