Tuesday, March 22, 2016

Another strip-tease of the Canadian military justice system

In R. v. Levi-Gould, 2016 CM 4002, a decision dated February 24, 2016 but just released a few days ago, Judge Pelletier of a Canadian court martial ruled that ss.157(1) of the National Defence Act which grants commanding officers the power to issue arrest warrants for execution in a dwelling-house is unconstitutional. The court found that the subsection is incompatible with the requirements of s.8 of the Canadian Charter of rights and Freedoms. Section 8 gives everyone the right to be secure against unreasonable search or seizure.

Judge Pelletier was of the view that such power of arrest in the military context had to be exercised by persons capable to act judicially and that the commanding officers did not meet this requirement. At paragraphs 23 to 26 he wrote:
[23] As stated earlier, the appropriate test is not whether the person authorized to issue an arrest warrant possesses the independence of a judge but rather whether that person has the capacity to act judicially. Following the principles outlined in Hunter, applied to arrest warrants in dwelling houses in Feeney, this capacity to act judicially is the capacity to act as a truly neutral and detached arbiter in locating the constitutional balance between a justifiable expectation of privacy and the legitimate needs of the state in law enforcement before authorizing an arrest warrant in a dwelling house.

[24] As explained previously, subsection 157(1) does not provide for any limit as to when a commanding or delegated officer may exercise his or her power to authorize a warrant into a dwelling house. It could, as it did in relation to the first warrant issued in this case, allow a commanding officer to authorize a warrant for the arrest of a member of his unit in a dwelling house, in relation to an offence that has been and continues to be investigated by or under the close supervision of his coxswain and/or executive officer, two members of his “command triad” whose duties are to allow the commanding officer to discharge his or her responsibilities for the good discipline, morale and efficiency of the personnel under his or her command.

[25] In my view, a commanding officer in this position, regardless of training, ethics or good intentions, is so involved in the investigatory functions performed by his closest advisors in his team that he or she cannot act in a judicial capacity when authorizing an arrest warrant under subsection 157(1).

[26] To be clear, I have no reason to doubt the good faith and commitment of any commanding officer, including Commander Druggett, in acting fairly. However, to paraphrase Dickson J. in Hunter, the issue is not the honesty or good faith of those authorized to act, such as a commanding officer or members of his or her team. It is whether the nature of a commanding officer's duties, at least in relation to the members of his or her unit, accords with the neutrality and detachment necessary to assess whether the point has been reached where the interests of the individual to be arrested in a dwelling house must constitutionally give way to those of the state in enforcing the law and, in this case, enforce discipline. I find that, in these situations, a commanding officer cannot be considered as a "neutral and detached arbiter."
The court declared ss.157(1) to be of no force and effect under ss.50(1) of the Constitution Act, 1982.


  1. I have an other question that would be worth debating... Why is it that military personnel are allowed FREE legal counsel when accused while in any provinces they would not qualify for legal aid? I think it's time we put an end to this practice...

    1. Jean, I think it is related to the fact that the system wants to provide defence counsel irrespective of rank. Otherwise, those with the higher military pay would have an advantage in getting more experienced lawyers. In terms of fairness, it would be perceived as an 'upstairs-downstairs' kind of justice. In that sense, the current system is ahead of its civilian counterpart. In the past recent years, we have seen an acceleration of the constitutional challenges to the system brought by uniformed lawyers. Some might be concerned that individuals would never have such representation free of charge, even when represented by civilian legal aid services. It may well be true but it is explainable: civilian criminal justice system is the ordinary one, its existence is on firmer ground, constitutionally speaking. In comparison, military justice is a specialized system, any departure from the ordinary system is more debatable. On that aspect, that illustrates system is not complacent with itself: it allows uniformed lawyers - those who are the most professionally aware of the potential issues - to challenge the system to make sure it is within Canadian legal norms. Quite frankly, I do not think those challenges are frivolous: they worth the judicial debate although few succeed. But if it is found that such scheme needs some professional restraint to refrain litigation zeal, it might be worth considering asking individuals to pay some minimal contributions calculated on rank basis. (such as Quebec Legal Aid scheme or Armed Forces Criminal Legal Aid Scheme in UK military justice).

    2. I agree in principle with Mr. Jean Caron and disagree with my friend Pascal Lévesque. If, and this is a big IF, courts martial were restricted - as they should to try disciplinary offences (under the Code of Service Discipline), I would have no problem with the provision of legal counsel at public expense. However, when it comes to Criminal Code offences (ie. sexual assaults), I agree most fully with Mr. Caron. At present CF accused enjoy a benefit which NO OTHER CANADIAN facing the criminal justice enjoys: unlimited legal representation at public expense. This might explain why at many such trials, the CF accused has not one but two experienced CF counsel dedicated to his defense. I disagree also that the military penal justice system is and needs to be specialized and be allowed to depart from the common law. system. An accused face with a criminal trial, whether a civilian, police officer, member of the armed forces or other professions or even a judge, should be equal before the law and receive the same right and treatment before a court of criminal jurisdiction.

  2. That is an interesting development. Cdr Pelletier's seems to have evolved from what he ruled in R. v. Caceido, 2015 CM 4018 (constitutionality of the legal scheme pertaining to custody following arrest - NDA s 158.6 and QR&O 105.18-105.23). In that case, he determined that although custody review officers and review authorities act judicially they do not breach the unwritten principle of judicial independence (see in particular paragraphs 45 to 47).


Comments are subject to moderation and must be submitted under your real name. Anonymous comments will not be posted (even though the form seems to permit them).