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.