Is the Canadian Military Prosecution Service (CMPS) bringing prosecutions and appeals without merit?

Admittedly, the question posed in the title of this Blog entry is provocative.

However, there are increasing indicators that a few prosecutions brought within Canada's Code of Service Discipline may have been motivated by factors beyond the merits of the case and a reasonable prospect of conviction.

The recent judgment of the Court Martial Appeal Court of Canada in R v Banting, 2020 CMAC 2 presents an example of what the CMAC termed "questionable" judgment by the CMPS in pursuing a prosecution, and subsequently, an appeal, of allegations brought within the context of Op HONOUR, the current initiative by the Chief of the Defence Staff to eliminate sexual misconduct in the Canadian Forces.  That appeal had previously been dismissed by the CMAC with very brief reasons (R v Banting, 2019 CMAC 5).  In the more recent judgment, the court was asked by the Respondent for an award of costs in light of the absence of merit in the appeal.  Although the Respondent did not receive the (approximately) $60,000 in costs sought on a solicitor-client basis, the CMAC did award $10,000 (inclusive of disbursements) on a party-and-party basis.

Were this an isolated incident, it could, perhaps, be explained as an over-zealous or overly enthusiastic pursuit of a matter by a particular prosecutor or prosecutors.  However, as Global Military Justice Reform contributor, Rory Fowler, suggests in his blog here, this recent case might be one of a growing number of examples of prosecutions that have been brought, within the context of Op HONOUR, where there may not have been a reasonable prospect of conviction. 

Op HONOUR is unquestionably a politicized topic.  Allegations of sexual misconduct in the Canadian Forces have attracted a great deal of media scrutiny, at a time when the prosecution of sexual offences in Canada's civilian criminal justice system was also subject to significant media commentary. Arguably, in light of such media attention, it is that much more important that a prosecutor -  military or otherwise - exercise the significant and comprehensive powers bestowed upon them in a transparent and reasonable fashion.  The mantle of 'minister of justice' is vitally important when the circumstances of such prosecutions become highly politicized.

Where there is an increase in the frequency of successful applications relating to a lack of prima facie cases, abuse of process, or other related frailties in a prosecution, it is perhaps time for constitutionally independent courts to scrutinize the broader motives that may be behind such prosecutions.