Monday, January 4, 2016

A most welcome judicial poultice

In R. v. Gagnon, 2015 CMAC 2, the accused was acquitted of a charge of sexual assault prosecuted as a service offence before a military court pursuant to s.130 of the National Defence Act (Act). The Minister of National Defence (Minister) appealed to the Court Martial Appeal Court (CMAC) against the acquittal.
Sections 230.1 and 165.11 of the Act give the Minister the right to Appeal:

Appeal by the Minister

230.1 The Minister, or counsel instructed by the Minister for that purpose, has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters: ”

(a) …….

(b) the legality of any finding of not guilty;”


165.11 The Director of Military Prosecutions is responsible for the preferring of all charges to be tried by court martial and for the conduct of all prosecutions at courts martial. The Director of Military Prosecutions also acts as counsel for the Minister in respect of appeals when instructed to do so. ”
“[Emphasis added]”


Counsel for the accused filed a motion to quash and dismiss the appeal on the constitutional ground that the Minister could not reasonably be perceived as an independent prosecutor who could act in an autonomous manner and independently from the chain of command for the overarching reason that he is the head of that chain.

The CMAC ruled that, at every step of the judicial process, section 7 of the Canadian Charter of Rights and Freedoms (Charter) guarantees an accused the constitutional right to an independent prosecutor.

By “independent prosecutor” the CMAC meant a person who may act and be reasonably perceived to be acting independently and impartially in deciding the nature and scope of prosecutions. In the case at hand, it found that the Minister could not reasonably be perceived to be an independent prosecutor acting freely.

Therefore it concluded that section 230.1 of the Act violates section 7 of the Charter and is not a reasonable limit to that section which can be justified in a free and democratic society.

While the Chief Justice of the CMAC agrees with the conclusion and most of the reasons given by Cournoyer J. A., nevertheless he went on to express the view that the Minister should keep a supervisory power over prosecutions in the penal military justice system. However, he added, that power should be subject to the same limits applicable to the powers of the Attorney General.

In the end the CMAC was unanimous in its conclusion that the right of appeal should be conferred upon the Director of Military Prosecutions. While this is what the CMAC could do best in the circumstances, the fact is that the end product is only but a poultice for the following reasons.

While the Director of Military Prosecutions (DMP) is appointed for four years, his entire Prosecution Service is under the general  supervision of the Judge Advocate General (JAG) who is the head of the legal chain of command. The same holds true for the Director of Defence Counsel Service who, together with his staff, also falls under the supervision of the JAG.

Moreover, it is the JAG who provides these Directors with the legal officers required to act as prosecutors and defending officers at courts martial.
Indeed, pursuant to art 4.08 of the QR&O’s, the JAG exercises command over every other “legal officer whose duty is the provision of legal services to the Canadian Forces”.  Exercising full authority for the command, management, control and administration over all its assigned human (civilian and military) resources, the JAG possesses plenipotentiary powers over the career, postings, assignments, promotions and professional advancement opportunities of each one of these legal officers.
Hence any notion that legal officers operating within the DMP or DDCS are independent and impartial is purely illusory.  As an aside, this might explain the reason why over the past decade and a half not a single DDCS officer was selected for appointment to the military bench, a selection process which also falls within the ambit of the JAG’s influence given his additional responsibility for the superintendence of the military justice system.

In the civilian justice system both the Prosecution and the Legal Aid Services act under the supervision of the Attorney General who, contrary to the JAG and for that matter the Minister, is and is reasonably perceived to be independent.

For sake of clarity and to remove any ambiguity, it should not be forgotten that the Minister of National Defence, like any other minister of the Crown, is bound by the rules and principles of ministerial responsibility and cabinet solidarity. The Attorney General, as the Chief law officer for the Crown, is not subject to the same fetters when exercising his unique functions relating to the administration of justice.

As held in Law Society of Alberta v Krieger: 2002 SCC 65, [2002] 3 SCR 372 : “It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions.” If political considerations which, in the broad sense may affect any government, in the abstract arise, it is the Attorney-General, applying his judicial mind, who has to be the sole judge of those considerations, and no one else. [See: UK, H.C. Debates, vol. 483, cols. 683-84, (29 January 1951) when the Attorney General of England, Sir Hartley Shawcross (later Lord Shawcross) described the proper relationship between the Attorney General and Cabinet colleagues.]

Therefore, while on paper the Canadian military Prosecution and Defence Services appear to be independent, the fact remains that the lawyers working in these services are part of the JAG chain of command and, as previously mentioned, they act under the control, management and supervision of the JAG. They have their performance evaluated by the chain of command. Their selection for service within these directorates, their subsequent postings, appointments and promotions are all determined by the JAG chain of command to which they are totally subservient and obedient.

In the end, while a poultice is most welcome in the circumstances, it is at best a transitory treatment. Most obviously strong and pressing legislative medicine is necessary as it is a long way, too long, overdue. At present the Canadian military justice structure remains a throwback to the days of the British or Colonial Empire.


  1. As ever, Gilles articulates an interesting point which raises a concern I share in respect of the UK Service Justice System: that of prosecutorial independence.

    While we in the UK might content ourselves with thinking that, in the post-Findlay, post-AFA 2006 world we have escaped the clutches of the chain of command, we find that, alas, we have not completely done so.

    In civilian criminal cases in the UK, there is a power under 36 of the Criminal Justice Act 1972 enabling a reference to the Court of Appeal of a point of law following acquittal on indictment. This is for the purpose of clarification of the law and does not affect the acquittal per se. The reference is by the Attorney General.

    In contrast, in the Service Justice System, section 34 of the Court Martial (Appeals) Act 1968 (permitting a reference by the "Service Authorities") and Rule 51 of the Court Martial Appeal Court Rules 2009 permit a reference by the Criminal Cases Review Commission, or the Judge Advocate General or the Secretary of State for Defence. But not the independent Director of the Service Prosecuting Authority.

    So, the anomaly exists that an independent prosecuting authority is unable to refer a matter, even via the Attorney General (whose powers lie only in respect of conviction on indictment), for clarification of a point of law, yet the Secretary of State for Defence, from whom the Director SPA is independent, can. It actually gets worse as, under s.34(4) Court Martial (Appeals) Act 1968, the Secretary of State "may, if consideration by the Appeal Court appears to him for any reason desirable, refer the "sentence" passed on any person convicted by a court-martial to the Appeal Court." Any such reference shall be treated as an appeal by the person convicted against sentence for all purposes except an order for costs (s.32). This trespasses into the province of the Att-Gen who has this specific power in respect of seeking a review of unduly lenient sentences passed by the Court Martial (s.273). Once the CMAC has made a determination he may then refer to the Supreme Court a point of law involved in any sentence passed on the offender in the proceedings.

    In the case of Morris-v-UK : ECtHR, App N° 38784/97, decided in 2002, four years before the AFA, it was held that the "Prosecuting Authority .... is answerable to the Attorney General" (ibid, §21 and §62). This, indeed, was the UK government's position (ibid, §52), when it stated that the prosecuting authority "and his staff were entirely independent of senior army command and brought prosecutions on behalf of the Attorney-General." Yet even today, the Att Gen does not have the power to refer a court martial acquittal to the Court Martial Appeal Court for clarification of the law. That privilege is, as I mentioned, only in the hands only of the Criminal Cases Review Commission, the Judge Advocate General or the Secretary of State (r.51 Court Martial Appeal Court Rules 2009).

  2. Most interesting. The Secretary of State for Defence may no longer has a 'main mise' on the military justice system but he continues to enjoy one of the last vestiges. It indicates perhaps that historical roots run deep within the military establishment in England and elsewhere. Such roots growth is often opportunistic and it takes place whenever and wherever the environment, as here, provides the oxygen necessary for survival and growth.

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