Tested by a test case

The Court Martial Appeal Court of Canada today handed down its ruling on a motion for costs in The Queen v. Banting, 2020 CMAC 2. The military judge had dismissed the single charge of conduct prejudicial to good order and discipline and the prosecution appealed. In a training setting, "Lieutenant [J.C.] Banting [had] used double entendre nuances, with some degree of sexual innuendo, as mnemonic devices." The prosecution appealed the dismissal, considering the matter a test case.  As today's decision noted, "At the close of the Appellant’s oral argument, this Court advised Lieutenant Banting’s counsel it did not need to hear from him. We dismissed the Crown appeal." Today it unanimously granted $10,000 in costs to Lieutenant Banting. After a survey of the governing principles, the court wrote:

[27] We now turn to whether the prosecution of Lieutenant Banting, and the subsequent appeal brought by the Crown, amount to frivolous or vexatious conduct. In considering this issue, the Court is mindful of its decisions in R. v. Golzari, 2017 CMAC 3 and Canada v. Bannister, 2019 CMAC 2. Those decisions spawned discussion among members of the military bar and military judges regarding the parameters of the offence of conduct prejudicial to good order and discipline and disgraceful conduct. Prosecution authorities found themselves attempting to assess and define the parameters of Golzari and Bannister against the backdrop of Operation Honour, at the expense of Lieutenant Banting. That does not lead us to conclude the proceeding was frivolous or vexatious.

[28] That said, we do wish to state categorically that while the prosecution of Lieutenant Banting may not have risen to frivolous or vexatious conduct, we do consider the prosecution and the subsequent appeal, to have been questionable. It is apparent that military commanders and the prosecution intended to use Lieutenant Banting’s circumstances to test the limits of this Court’s reasoning in Golzari and Bannister. Those same commanders and the prosecution chose to use Lieutenant Banting’s circumstances to test the reach of Operation Honour within the military justice context. They chose to pursue the case against Lieutenant Banting in circumstances where a court would eventually conclude there existed no prima facie case and where the Canadian Armed Forces training manual authorized the acronym F.U.C.K. (Fight the fight; Uncontrolled bleeding; Communicate; Keep moving) as a mnemonic device. Based upon the subjective sensibilities of at least one of the perceived “complainants” in this case, that acronym would seem more offensive than any of the double entendres employed by Lieutenant Banting. The test case failed miserably. Only one question arises: should Lieutenant Banting’s costs be borne exclusively by him? We conclude they should not. The successful accused in this case should not bear the costs of a test case with major implications across the whole of the military justice system.

[29] The remaining question is whether to award costs on a party-and-party basis or on a solicitor-client basis. Party-and-party costs are intended to produce a partial indemnity, whereas costs on a solicitor-client scale are intended to result in full indemnity to the beneficiary of the award. Solicitor-client costs are generally awarded on those very rare occasions where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties (Young v. Young, [1993] 4 S.C.R. 3, 108 D.L.R. (4th) 193, at p. 134; Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 26; Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, 2002 SCC 13, [2002] 1 S.C.R. 405, at para. 86; Caron, at paras. 112-113).

[30] Although the Appellant’s conduct was negligent at best, we are satisfied it does not reach levels of reprehensibility, scandal or outrageousness to justify an award of solicitor-client costs. We are of the view that a significant award of party-and-party costs, which will partially compensate Lieutenant Banting, is appropriate in this test case. We are satisfied that an award of $10,000 of costs on appeal, all inclusive of disbursements, is reasonable in the circumstances.

Congratulations to prevailing counsel Joshua M. Juneau of the Michael Drapeau Law Office, Ottawa, on an important victory.

Moral: test cases have an honored place in Western legal tradition, but they must be chosen with care and litigated with prudence. Given today's decision, it will presumably be some time before another prosecution test case comes before the Court Martial Appeal Court of Canada.