Sunday, August 4, 2019

Stillman: where does the path lead from here?

Military justice mavens in Canada and elsewhere are still studying the Supreme Court's recent decision in Stillman v. H.M. The Queen, where the court held, 5-2, that the military crimes exception to the right to trial by jury applies to civilian offenses, even if there is no nexus to military service. It is safe to predict that law review articles will be appearing on this case in the coming moths. Global Military Justice Reform will welcome thoughts from Canadian readers, but here are a few to kick things off:

This case (like Solorio v. United States, which it unfortunately embraces) was wrongly decided, but the train had probably left the station when the court decided R. v. Moriarity, 2015 SCC 55. With that case's rejection of service nexus as a matter of parliamentary power, it would have been a miracle for the court to revive that principle in the limited context of s. 130(1)(a) cases. Barring a major turnover on the Supreme Court, Canada is stuck with this new piece of Charter jurisprudence: modification of the Canadian Charter is unimaginable. Less imaginable, but still a long shot, is persuading Parliament to amend the Code of Service Discipline either to repeal s. 130(1)(a) altogether or to insert a nexus requirement either for that section or for all offenses that have Canadian Criminal Code counterparts. (A proposal to amend the Uniform Code of Military Justice to require service-connection in the wake of Solorio died in committee.)

There is another way to restore the jury-trial right Stillman curtails--one that does not necessarily require legislation. Thus, the Department of National Defence or Director of Military Prosecutions could voluntarily impose a nexus requirement for any case in which there is concurrent civilian and court-martial jurisdiction and in which the potential punishment under the Criminal Code would trigger the right to trial by jury.

Even if that step is not taken, Canadian authorities might wish to consider taking a fresh look at the DMP's guidelines for concurrent jurisdiction cases.

The following language from the Stillman dissent is thought-provoking:
[173] . . . Moreover, if there is a difficult determination to be made about whether there is a military connection, courts are better placed to make such determinations rather than leaving it to the discretion of the prosecutor. As stated in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, we cannot be certain that discretion will always be exercised properly, nor should the constitutionality of a legislative provision depend on the confidence that the public prosecutor will act properly (para. 95). The DMP does not share the same guarantees of independence as the Attorney General or the Director of Public Prosecutions, nor is the DMP accountable to Parliament (G. Létourneau and M. W. Drapeau, Military Justice in Action: Annotated National Defence Legislation (2nd ed. 2015), at p. 12).

[174] Should a Charter right be left to the discretion of the prosecution or should it be determined, in the end, by the courts? The answer must be the latter. The military wishes to retain its discretion and, thereby, to deny to some accused who are members of the armed forces the proper exercise of their rights. The response to this needs to be unequivocal: Charter rights are not subject to prosecutorial discretion; rather, they are subject to determination by the courts. 
[175] Furthermore, given that the DMP currently uses a test similar to the military connection test to determine whether a case should proceed in the military justice system, requiring a military connection test as part of a s. 11(f) analysis is unlikely to significantly affect the number of cases heard by civilian courts, such that it would result in further backlogs in civilian courts (Majority Reasons, at para. 104). Such a suggestion is pure speculation. In fact, there may be delays when service members are tried in military courts. A recent audit by the Auditor General of Canada found that “Canadian Armed Forces took too long to resolve many of its military justice cases, with significant impacts in some cases” (Spring 2018 Reports of the Auditor General of Canada to the Parliament of Canada: Report 3 — Administration of Justice in the Canadian Armed Forces (2018), at para. 3.10). There is no evidence before us that the military justice system suffers from fewer delays than the civilian system. Even if there were, the possibility of delay is not a proper basis to deny an accused their right to a jury trial.
The DMP's policy directives can be found here. They deserve much closer scrutiny than the Supreme Court afforded them.

Prosecutorial discretion that is unfettered by either statute or regulation becomes a serious obstacle for the government’s defence of s. 130(1)(a) because Oakes requires that any infringement of a Charter right must be prescribed by law in order to be “demonstrably justified.” (The government must carry this burden. R. v. Oakes, [1986] 1 S.C.R. 103 at 137.)

Section 130(1)(a) in itself offers no standards to channel official decision making as to where Criminal Code offences ought to be tried – civilian court or court-martial. Nothing in the NDA or other Canadian legislation fills this gap. Nor is there a proper regulation that channels the exercise of official discretion on this key issue.

The Director of Military Prosecutions has set forth standards to guide internal decision making with respect to the choice of civilian or military jurisdiction for cases that could be tried in either system. These appear on the Director’s website and look official, but they are not regulations and do not have the force of law, the Director not having statutory rule making authority. See NDA ss. 12, 165.1. For pre-charge screening, Policy Directive 002/99 (updated through Sept. 1, 2018) provides:
22. In order to determine whether charges should proceed in the military or civilian justice system, the Prosecutor may communicate directly with civilian authorities having concurrent jurisdiction, either before or after a charge is laid. The Prosecutor shall consult with the appropriate DDMP [Deputy Directors of Military Prosecution] prior to any such communication.

23. Determining which jurisdiction should prosecute a case will require careful consideration of all relevant factors including:
a. the degree of military interest in the case, as reflected by factors such as the place where the offence was alleged to occur, or whether the accused was on duty at the time of the alleged offence;
b. the degree of civilian community interest in the case;
c. the views of the victim [footnote omitted];
d. whether the accused, the victim, or both are members of the CAF;
e. whether the matter was investigated by military or civilian personnel;
f. the views of the investigative agency;
g. geographic considerations such as the current location of necessary witnesses;
h. jurisdictional considerations where, for example, the offence was allegedly committed abroad;
i. post-conviction consequences; and
j. the views of the Commanding Officer, as expressed through the unit legal advisor, with respect to unit disciplinary interests.

24. Where consensus is not achieved by consultation between the Prosecutor, civilian authorities and unit legal advisor, the Prosecutor shall engage the appropriate DDMP. The appropriate DDMP will continue the consultation process to resolve the matter.
Similar terms appear in ¶¶ 25-27 of the policy directive on post-charge review and ¶¶ 17-19 of the policy directive on sexual misconduct offences.

The policy directives do not meet the requirement that any infringement of a Charter right be “prescribed by law” in order to qualify as “demonstrably justified.” Although they are available to the public, they are not statutory, nor have they been issued in accordance with Canadian procedures for regulation. They are also deficient in substance. They take no account of a (perhaps the) key factor: loss of the right to trial by jury. In several other respects they are open-ended and permit improper factors to be weighed in the balance. For example:
a. What is meant by “the degree of civilian community interest”?
b. What is the stated interest of the cognizant civilian prosecutor in pursuing the charge?
c. Is there a call for prosecution by members of the public?
The directives call for consideration of the views of the victim, but the victim is an interested private party and presumably could not care less about whether the accused’s right to trial by jury is being denied. Deferring to victims’ views in effect subdelegates the forum choice in s. 130(1)(a) cases to private individuals who may not have the slightest idea of the DMP’s other factors. This takes the decision making ever further from being “prescribed by law.”

Whether the charge was investigated by civilian versus military personnel makes the choice-of-forum factors circular. “[T]he views of the investigative agency” are an improper factor because those views themselves are uncontrolled by any standards, including those pertinent to the denial of Charter rights such as trial by jury. “[J]urisdictional consequences” are also a questionable factor since, by definition, s. 130(1)(a) cases are subject to concurrent jurisdiction. It is unclear why “post- conviction consequences” are a proper consideration when deciding whether a member of the Canadian Armed Forces or other person subject to Canadian military justice should be denied the right to trial by jury.

Notably, the directives take no position on what the default position is, civilian vs. military. The consultation provisions do not even indicate which official, the Director or a civilian official, has the last word.

If the Canadian Armed Forces do not address the obvious questions about these criteria for concurrent-jurisdiction cases, Parliament could intervene. That should not be necessary. The JAG can fix these defects without waiting for legislation. After all, as the Stillman majority optimistically observed, further changes in the country's evolving military justice system are to be expected . . . isn't this one?

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