The Deputy Chief Military Judge's Line in the Sand

This afternoon, 14 August 2020, the Deputy Chief Military Judge (DCMJ), and de jure Acting Chief Military Judge, delivered judgments in the courts martial of R v Edwards and R v Crépeau.  While the judgments have not yet been published, the DCMJ did deliver his judgments, verbally, in open court.

And the Chief of the Defence Staff (CDS) and the Director of Military Prosecutions (DMP) are not likely to be particularly happy about the results.

In these courts martial, the accused challenged the independence of Canadian military judges, based upon both statutory provisions, as well as specific actions by the executive.  Military judges are officers in the Canadian Forces.  In effect, as was mentioned by my fellow Canadian Lawyer, Michel Drapeau, this makes them members of both the executive branch of government, as well as the judicial branch.  And this status potentially affects their independence.

As officers in the Canadian Forces, they are subject to the Code of Service Discipline, established under Part III of the National Defence Act (NDA).  As we witnessed in the prosecution of the Chief Military Judge, Colonel Mario Dutil, this can make military judges vulnerable to interference by the executive.  This has been compounded by an order from the CDS, purporting to give disciplinary authority over military judges to the Deputy Vice Chief of the Defence Staff.

That order was the subject of judgments in, among other cases, R v Pett, 2020 CM 4002, and R v D'Amico, 2020 CM 2002.  In both those cases, military judges Commander Pelletier and Commander Sukstorf, respectively, concluded that the order could have no force or effect because it infringed the independence of the military judiciary, contrary to section 11(d) of the Canadian Charter of Rights and Freedoms (Charter).  Both military judges also concluded that the role of the Military Judges Inquiry Committee (MJIC) was, in effect, an alternative to the Code of Service Discipline.

However, courts martial in Canada are statutory courts, not 'Section 96 Courts' (established pursuant to section 96 of the Constitution Act, 1867) with inherent jurisdiction.  Military judges cannot strike down legislation or declare, generally, executive action of no force or effect.  They can only make rulings on the matters before them and the judgment is limited to that matter alone.  As a consequence, once the first couple of judgments found that the CDS order was unconstitutional as an infringement on judicial independence and impartiality, it invited similar applications in every subsequent court martial.

Therefore, in R v Bourque, 2020 CM 2008, military judge Commander Sukstorf issued an ultimatum.  The CDS had until the following week to rescind the impugned order that had been determined to be unconstitutional by at least two of the four military judges.

The order was not rescinded.

The judgments in R v Edwards and R v Crépeau were both delivered by the DCMJ, one, after the other.  Both dealt with similar issues (although there were some distinctions in the arguments raised).  In brief, the DCMJ held:

1. The MJIC process is an alternative to the Code of Service Discipline, in part because it, too, is established under Part III of the NDA;
2. The CDS order contravenes the right of "... any person charged with an offence ... to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal ...";
3. The refusal of the CDS to rescind his unconstitutional order, after judgments in five courts martial, and the passage of 6 months, and the failure of the CDS' legal advisors to press the CDS to do so, is an affront to the Rule of Law; and
4. While he could simply have terminated the prosecutions, the DCMJ opted instead for the more severe remedy of a stay.  The DCMJ held that a termination of proceedings would have permitted DMP to re-prefer charges, and the disregard of the Rule of Law warranted a more definitive judgment.

At this stage, in light of the absence of a published judgement, I would offer three observations:

1. The Canadian military bench appears to be unimpressed with the (outgoing) CDS' cavalier approach to judicial independence and the Rule of Law.  They also appear to be similarly unimpressed with the laissez-faire attitude exhibited by the CDS' legal advisors in the Office of the Judge Advocate General.
2. Military judges are of the view that the MJIC process is analogous to a 'Code of Service Discipline' for military judges.
3. There is a very high likelihood of an appeal (or appeals) by DMP.  

Observations #1 and 3 are straight-forward and not much more need be mentioned at this juncture, until a published judgment is available for further scrutiny.  And it is certain that there will be future commentary on these judgments by the author of this post, and others.  My second observation warrants additional commentary.

Last week, on 6 August 2020, my fellow Canadian commentator, Michel Drapeau, posted a thought-provoking Blog article concerning what he characterized as the 'Dutil Affair'.  His opening paragraph was:

Everywhere except the Canadian Armed Forces, federally appointed judges are accountable for their conduct to the Canadian Judicial Council, which has the power to investigate and adjudicate complaints. Doing so enables the court to preserve the honor of the institution and permits judges to protect their public image in order to preserve their prestige and authority throughout the investigative process. The principle is simple: the public must have confidence in the justice system.

(And, this is my translation from the original French language post.  I assume responsibility for any error in translation.  However, I believe I accurately captured the essence of what my colleague wrote.)

First, I agree whole-heartedly with Michel's conclusion: the public - and not just the members of the Canadian Forces - must have confidence in the military justice system.  That likely goes without saying, but I will say it nevertheless.

However, I take issue with the seeming implication arising from the statement that military judges are not subject to the supervision of the Canadian Judicial Council (CJC).  While it is strictly true that the CJC does not supervise military judges, that is principally because military judges are appointed under the authority of the National Defence Act (NDA), and not the Judges Act, RSC 1985, c J-1, which also creates the CJC.  Civilian judges who are appointed federally are appointed by the Governor in Council under the Judges Act.  Military judges are appointed by the Governor in Council under the NDA.  Military judges are subject to the MJIC, which is created under the NDA, much as the civilian judges are subject to the CJC, which is created under the Judges Act.  The MJIC is headed by the Chief Justice of the Court Martial Appeal Court; the CJC is headed by the Chief Justice of Canada.  Indeed, in the 'Dutil Affair', the MJIC received and considered a complaint against the Chief Military Judge, Colonel Mario Dutil.  It performed the same function that the CJC performs for civilian judges.

So there was a comparable process to "... preserve the honor of the institution and ... protect [the] public image ..." of military judges.  The problem  was that certain decision-makers in the Canadian Forces were not satisfied with the result when the MJIC concluded that Colonel Dutil did not exhibit misconduct.  Specifically, based upon the information available both from Colonel Dutil's court martial, and the subsequent application for judicial review by DMP, we know that the (then) Chief of Staff for the Office of the JAG, Colonel Bruce Wakeham, brought an 'ethics complaint' to the attention of the MJIC.  The Chief Justice of the CMAC assigned a judge (Justice Gagné) to review the 'ethics complaint' and determine if an inquiry should be started. Eventually, the Chief Justice of the CMAC advised Colonel Wakeham that no inquiry would be started and that the file would be closed following the acceptance by the Inquiry Committee of the recommendation of Judge Gagné.  After this process was completed, the military police resumed (or restarted) their investigation.  It is unclear whether they did so of their own motion, or if a renewed complaint was placed before them.

Thus, military judges have considered the issue of whether the MJIC process (which is essentially the same as the process used by the Canadian Judicial Council) is truly analogous to the Code of Service Discipline.  Three of the present four military judges have all held that it is.  I disagree.

The problem with concluding that the Military Judges Inquiry Committee constitutes an equivalent disciplinary regime is that it doesn’t constitute a disciplinary regime in the context understood under the NDA.  It is, as with the functions of the Canadian Judicial Council, an administrative tribunal whose role is to examine a military judge’s continued suitability for judicial office when misconduct is alleged.  The ‘disciplinary’ nature of such a tribunal is analogous to the ‘disciplinary’ role of tribunals created by professional regulators such as Law Societies and Colleges of Surgeons (albeit, one that has additional safeguards for a judge’s constitutional independence).  But that is not consistent with what constitutes a disciplinary regime under the NDA.  Just as the functions of the Canadian Judicial Council are not analogous with a prosecution under the Criminal Code, the function of the MJIC is not analogous to a prosecution under the Code of Service Discipline.

Civilian judges are not immunized against prosecution under the Criminal Code for alleged acts that they commit other than when presiding at court.  And the possibility that they could be prosecuted based upon allegations of criminal wrong-doing does not undermine their independence or impartiality.  Civilian judges have been prosecuted for criminal wrong-doing.  The principal problem that arose in the prosecution of Colonel Dutil before a court martial was not that the possibility of such prosecution undermined his independence.  The problem was that the very limited pool of three military judges capable of presiding over a court martial in French did not offer a possibility of appointing a judge that would not give rise to an apprehension of bias or who was not in an apparent conflict of interest.  

As I have suggested previously, the solution for DMP ought to have been straight-forward.  One viable alternative would have been to refer the charges to an appropriate provincial Superior Court of Justice, which, pursuant to section 96 of the Constitution Act 1867, has inherent jurisdiction over all offences under Acts of Parliament, not just Criminal Code offences.  This jurisdiction includes offences under the Code of Service Discipline (i.e. the NDA is an Act of Parliament).  Of course, such a course of action exposes military decisions to truly civilian scrutiny.

Frankly, as we can anticipate that these judgments will likely be the subject of an appeal or appeals to the Court Martial Appeal Court of Canada (CMAC), this is likely not the last we will hear of these issues.  The CMAC may well be required to rule on: (1) whether the MJIC process truly is an alternative disciplinary regime to the Code of Service Discipline; and, (2) the viability of prosecuting military judges, under the Code of Service Discipline, before civilian Superior Courts of Justice.

And remember: in the background of these developments is the fact that Colonel Dutil retired on 20 March 2020, upon attaining 'Compulsory Retirement Age'.  Since that point in time, the DCMJ has been the de jure Acting Chief Military Judge.  Not only has 7 months passed since the impugned CDS order was first held to contravene section 11(d) of the Charter, but we have been waiting nearly five months for the Governor in Council to appoint a new Chief Military Judge.  The military bench is clearly not terribly happy with some of the decisions of senior members of the executive.  It is interesting to consider if the delay in appointing a new Chief Military Judge is a manifestation of displeasure on the part of the executive.