Why are conditional discharges not available to courts martial in Canada?

Recently, I commented on the Pleas in Bar of Trial in both R v Master-Corporal Pett, 2020 CM 4002 and R v Corporal D’Amico, 2020 CM 2002 relating to the independence and impartiality of the military judiciary in Canada.  However, the case of Corporal D’Amico is significant in a second way: his was the first court martial in which a judge granted an absolute discharge at a contested sentencing hearing.

This prompted me to query why only ‘absolute discharges’ are available in Canadian courts martial, to the exclusion of ‘conditional discharges’.

Unfortunately, although the D’Amico Court Martial was concluded over 2 weeks ago, the reasons for sentencing (or, more specifically, the granting of an ‘absolute discharge’, since that is not a sentence) have not yet been published on a publicly available database.  However, for the purposes of the discussion below, the judicial reasons are not necessary.  What I am aware of is the following: 

1. After the aforementioned Plea in Bar of Trial was unsuccessful, Corporal (Cpl) D’Amico was found guilty of an offence under section 129 of the National Defence Act (NDA): neglect to the prejudice of good order and discipline.  [It is likely that this was the result of a guilty plea, but I will refrain from including that speculation in my discussion below].
2. On sentencing, defence counsel argued for an absolute discharge, and military prosecutors argued for a sentence that would presumptively have led to a conviction (e.g. a fine or a fine and a reprimand).
3. Cpl D’Amico received an absolute discharge.

By virtue of the absolute discharge, although he was found guilty of the offence under section 129 of the NDA, Cpl D’Amico was not convicted.

As I mention above, this is the first time that an absolute discharge has been granted at court martial where military prosecutors opposed the defence proposition.  There have been prior occasions in which defence counsel have requested an absolute discharge – e.g. R v Corporal Cadieux, 2019 CM 2019 – but those arguments were unsuccessful.

‘Firsts’ tend to receive a degree of recognition.  This is equally true in military context.  But what strikes me as one of the most significant aspects of this decision is not its status as a ‘first’, but the fact that the military judge faced a choice between an absolute discharge or a sentence from the permitted scale of punishments.

Specifically: the military judge did not have the option of considering a conditional discharge, and the defence counsel could not propose that option. 

That’s because the NDA does not permit the use of a conditional discharge.

And that is problematic.

The somewhat theatrically named Strengthening Military Justice in the Defence of Canada Act, SC 2013, c 24, introduced a variety of amendments to the Code of Service Discipline, some of which were meant to bring ‘military justice’ in line with civilian criminal justice norms.  One of these amendments was to introduce, at section 203.8 of the NDA, the availability of an absolute discharge.  This provision came into force (along with several other provisions concerning sentencing and related disciplinary functions) on 1 September 2018.

The possibility of absolute discharge has been raised at court martial sporadically since then.  In R v Corporal Cadieux, defence counsel argued for an absolute discharge after the offender pled guilty to what the military judge described as a “minor sexual assault”.  Specifically, according to the sentencing reasons the offender kissed the victim while she was asleep in her sleeping bag (in a tent) while they were deployed on an exercise.

Commander Sukstorf, the military judge in Cadieux (and also D’Amico), first evaluated whether the requested absolute discharge was available for a charge of sexual assault.  She concluded that it was.  She then evaluated whether it would be in the public interest to grant an absolute discharge and concluded that it was not. 

Cpl Cadieux was sentenced to 60 days’ detention and a severe reprimand.  He was also subject to what are colloquially referred to as a ‘DNA order’ under section 196.14 of the NDA and a ‘SOIRA order’ under section 227.01 of the NDA. However, the military judge suspended the execution of the sentence and orders.  Commander Sukstorf’s reasons in Cadieux are relevant to the outcome in D’Amico, and we will return to that dynamic shortly.

What is remarkable about the amendments to the Code of Service Discipline introduced by the Strengthening Military Justice in the Defence of Canada Act is that they did not include the possibility of granting a conditional discharge.

I anticipate that most Canadian lawyers with experience as defence counsel in criminal prosecutions would suggest, if anecdotally, that they will seek conditional discharges more frequently than absolute discharges.  A conditional discharge has the same effect (eventually) as an absolute discharge.  Although the offender is found guilty, he or she is not convicted.  He or she won’t have a criminal record.  However, a conditional discharge would typically require the offender to complete, successfully, a period of probation in order to be ‘discharged’ (hence: the ‘conditional’ part of a conditional discharge).

In effect, the terms of a conditional discharge oblige an offender to demonstrate to the court a period of ‘good behaviour’ to merit the discharge.  Consequently, a ‘conditional discharge’ may be more palatable to both the ‘sentencing judge’ as well as the prosecutor, who represents the public interest.  That is likely one of the most compelling reasons why conditional discharges are more common or frequent than absolute discharges.

So why does the NDA not permit a military judge to grant a conditional discharge?

I suspect that the legal officers in the ‘Military Justice Division’ of the Office of the Judge Advocate General, who work on policy initiatives such as the amendment of the Code of Service Discipline provisions in the NDA, might suggest that this is because members of the Canadian Forces are subject to greater control by their chain of command than other Canadians.  Therefore, a ‘conditional discharge’ is not necessary and would not serve a practical purpose.  Perhaps they would suggest that the nature of the dynamic between a civilian offender and society is different than that between a CF offender and the Canadian Forces.

Acknowledging that I am speculating on the justification, I do not find such arguments particularly convincing.

I am obliged to speculate, because the Office of the JAG does not provide a public explanation of why a conditional discharge was not included in Bill C-15, which was enacted as the Strengthening Military Justice in the Defence of Canada Act.  Nor do the Departmental notes on LEGISinfo, Parliament’s database on legislation, provide any explanation why conditional discharges were not included in the amendments.

Here is what the legislative summary provides:

Having regard to the best interests of the accused and to the public interest, a service tribunal may direct that an accused person who is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life, be discharged absolutely (new section 203.8(1) of the NDA). These are the same criteria as are provided in the Criminal Code, although the Code also allows for a conditional discharge.

A discharged offender is deemed not to have been convicted (new section 203.8(2) of the NDA). However, a firearms prohibition order (clause 22), a restitution order (new section 203.9 of the NDA) or an order for restitution of property (clause 74) may be made.

 While there is some acknowledgement that the Criminal Code permits a conditional discharge, but the NDA would not, no explanation if offered for this derogation.

What I do know is that, in the First Independent Review of the NDA, (or, more accurately, the First Independent Review of Bill C-25, which amended the NDA in 1998) the late Chief Justice Antonio Lamer recommended (recommendation #52) that “… the Department of National Defence undertake a comprehensive review of the sentencing provisions of the National Defence Act with a view to providing for a more flexible range of punishments and sanctions, as is available under the civilian criminal justice system.”

When Justice Patrick LeSage undertook the Second Independent Review, there had been sufficiently limited progress on this issue that he recommended (recommendation #13) that “… [a] A comprehensive review of the sentencing provisions of the NDA should be undertaken to provide for a more flexible range of punishments and sanctions.”

While neither report expressly delved into the specifics of ‘discharges’, the intent was clear: members of the Canadian Forces should benefit from the same range of sentencing options available to civilians (and to members of the Canadian Forces) under the Criminal Code when appearing before civilian courts of criminal jurisdiction.

I am left to speculate why ‘conditional discharges’ were not included.

Perhaps I am overly cynical, but a rather obvious conclusion is that the intent was to discourage the use of discharges.

As I mention above, ‘conditional discharges’ tend to be more common than ‘absolute discharges’, in part, because they are a more palatable result.  To put it colloquially, an offender has to ‘earn’ the discharge when granted a ‘conditional discharge’.  An ‘absolute discharge’ can appear, to some, to be a mere slap on the wrist – or less.

I am left to wonder whether the availability of a ‘conditional discharge’ might result in military judges being more inclined to grant such a result where they would otherwise be disinclined to grant an ‘absolute discharge’.  Returning to the Cadieux case, I wonder whether Commander Sukstorf might have been more amenable to granting a discharge if a ‘conditional discharge’ had been available to her.

Perhaps most importantly, I am left to wonder why policy decision-makers stopped short of including this judicial tool in the amendments to the Code of Service Discipline.