Access to court-martial records

A Canadian military judge, Lt.-Col. L.-V. d'Auteuil, has handed down an interesting decision in Canadian Broadcasting Corp. v. Court Martial Administrator, 2014 CM 3014 (Aug. 28, 2014). The CBC sought court-martial records for a 2007 case in connection with research for an article. Held, the judge lacks jurisdiction to order the Court Martial Administrator to release the requested documents. The opinion recites in part:

[24] Considering the authority provided in the regulation to the CMA concerning court's files and transcripts, the decision to provide access and copy of documents found in a court martial file, including access and copy of the transcript of such a court once it is terminated, is an administrative decision that belongs solely and exclusively to the CMA. According to the National Defence Act and to regulation, it is my conclusion that responsibility to handle and provide access to court martial's files and transcripts is of the CMA's duties.

[25] By statute, a court martial is not a permanent court, as expressed earlier and despite having control over is own process, once the court is terminated, it does not exist anymore and cannot exercise control over the access to records it generated, such as the administrative file and the transcripts of its minutes. This authority has been clearly given to the CMA because of the very nature of the court. Consequently, the application made by CBC did not legally revive the court martial of Sergeant Underhill, nor it did not convene or reconvene it. Then, I do not preside at such court martial. I do act as a military judge presiding at a hearing, nothing more, and nothing less.

[26] As a matter of logic, such decision has nothing to do with variation of an order or an order to be considered in relation with the conduct, the finding or the sentence of the court. The question of access to and issuance of a court martial's decision and its minutes once a court martial is terminated is purely administrative and it belongs clearly to the CMA to make any administrative decision in relation to that topic.

[27] As a military judge, I have been assigned to exercise a judicial duty to hear the application before this court. I do not exercise any of the power, duty or function of the Chief Military Judge. My assignation by the Chief Military Judge was made in order for me to make a judicial determination about this matter and not in any way administratively. It is my conclusion that I cannot and do not exercise any of the Chief Military Judge's administrative power, duty or function by sitting judicially for dealing with the application before me.

The case is reminiscent of the efforts made by media representatives to obtain timely access to case documents in the high-profile general court-martial case of United States v. Manning, although there the issue arose during the trial process. Access to case documents has also been a recent issue in the UK.