Wednesday, September 2, 2020

An appeal worth following: R v Crépeau

The court martial judgement in R v Crépeau, 2020 CM 3007 [Crépeau]. has been published.  This is a companion judgment to R v Edwards, 2020 CM 3006 [Edwards] - both were delivered by the Deputy Chief Military Judge, Lieutenant-Colonel L-V. d'Auteuil on 14 August 2020 and both relate to judicial independence.  However, unlike the application in Edwards (which was essentially the same as the applications in R v Pett, 2020 CM 4002 [Pett], R v D'Amico, 2020 CM 2002 [D'Amico], and R v Bourque, 2020 CM 2008), in Crépeau, defence counsel challenged not only the order of the Chief of the Defence Staff (CDS) that purported to place military judges under the disciplinary jurisdiction of the Deputy Vice Chief of the Defence Staff, he also served a Notice of Constitutional Question regarding the statutory provisions that place military judges under the jurisdiction of the Code of Service Discipline generally.

Director of Military Prosecutions (DMP) has served notices of appeal in both cases.  There is a distinct possibility that these appeals will be heard separately.  The court martial in Edwards was conducted in English; Crépeau was conducted in French.  And the accused can request that their appeals be conducted in their 'First Official Language'.  If they are conducted separately, I suggest that Crépeau is the appeal to follow.

I have suggested previously, in this blog as well as my own, that the immediate impact of Edwards and Crépeau includes the likely willingness of military judges to impose stays of prosecution for most or all courts martial until the CDS rescinds his order.  I have likened this to a 'juridical game of chicken'.  There is no indication thus far that the CDS is willing to back down.  One need only peruse the court martial calendar for the months of September and October to note that most of the matters scheduled are applications.  It does not take a genius to figure out that these applications will be similar to the application in Edwards.  As I have mentioned previously, there is a very real risk that the CDS's stubborn refusal to rescind his order could cause courts martial to grind to a halt.  But this may only be relevant in the immediate future.

In Edwards, the key issues were whether the CDS' order contravened s 11(d) of the Canadian Charter of Rights and Freedoms [Charter (which, in light of prior judgments by military judges, was a likely foregone conclusion) , and whether the CDS' refusal to rescind his order in the face of these repeated judgments justified the significant remedy of a stay of prosecution. Therefore, the issues in the appeal are likely to be: (1) does the CDS' order infringe the accused's right to a trial before a fair and impartial tribunal under s 11(d) of the Charter; and, (2) if so, was a stay justified in those circumstances?

But here's the thing: regardless of the conclusions of the Court Martial Appeal Court of Canada (CMAC), their judgment in Edwards is unlikely to halt courts martial in the long term.  And that is because that judgment focused only on the CDS's order, and not the statutory jurisdiction of the Code of Service Discipline over military judges generally.

The CMAC will either conclude that the CDS' order infringes section 11(d) of the Charter or it doesn't.  If the CMAC concludes that the CDS' order does not contravene s 11(d) of the Charter, then there is no Charter infringement to justify a stay.  If the CMAC concludes that the CDS' order does contravene the Charter, the Court will likely declare it of no force or effect. Unlike a judgment and declaration of a court martial, which applies only to the matter before the court martial, a declaration of the CMAC will have broad and general application.  In other words, if the CDS continues to refuse to rescind his problematic order, and the CMAC concludes that it contravenes the Charter, the CMAC will, in effect, rescind the CDS' order for him.  If the CDS won't play with his toys in a respectful fashion, the CMAC will take them away from him (at least, in the immediate sense).

Thus, regardless of how the CMAC answers the first question, the CDS' order will not be a barrier to future courts martial.  The CMAC will either have held that it does not contravene the Charter, or it will remove it from the equation entirely.  If the CMAC concludes that there was a Charter infringement, it will also have to determine whether stays were warranted in Edwards and Crépeau.  In the circumstances, the CMAC may conclude that the stays were warranted as part of the dialogue between the military bench and the CDS; however, that issue will only affect Leading Seaman Edwards and Captain Crépeau.

Remember: the stays of prosecutions ordered by Lieutenant-Colonel d'Auteuil were grounded in the fact that the military judges had repeatedly held that the CDS needed to rescind his order because military judges presiding at courts martial do not have the jurisdiction to make declarations of general application.  They could not do what the CMAC can do if the CMAC concludes that an order from the Executive contravenes the Charter

If the issue in Edwards had been the only Charter issue addressed by Lieutenant-Colonel d'Auteuil on 14 August 2020, then, conceivably, the CDS could let the matter run its course, and 'let the chips fall where they may'.  However, in Crépeau, the accused challenged the very application of the Code of Service Discipline to military judges.  And, like Commander Pelletier in Pett and Commander Sukstorf in D'Amico, in Crépeau, Lieutenant-Colonel d'Auteuil held that the 'disciplinary process' that falls under the Military Judges Inquiry Committee (MJIC) is a substitute process for the Code of Service Discipline.  The Deputy Chief Military Judge declined to grant the declaration, sought by the accused, that sections 12, 18, and 60 of the National Defence Act contravened s 11(d) of the Charter.  More specifically, the Deputy Chief Military Judge concluded that the general jurisdiction of the Code of Service Discipline over military judges did not contravene s 11(d) of the Charter.  This broader issue will likely be the subject of a cross-appeal by the accused.

And that is the issue to follow in these appeals.  I have commented before that the suggestion that the MJIC process is a substitute for the Code of Service Discipline markedly mischaracterizes the limited scope and purview of the MJIC process.  These two processes serve two fundamentally distinct purposes.  In particular, the MJIC process examines judicial ethics and conduct, not criminal or disciplinary misconduct. and the scope of the MJIC's powers is limited to recommending to the Governor in Council that a military judge should be removed (or not).

What the application (and eventual appeal and cross-appeal) in Crépeau examined (and will examine) is the legislative gap revealed in the problematic prosecution of the former Chief Military Judge, Colonel Dutil.  Ultimately, the question with which the CMAC (and likely the Supreme Court of Canada) will struggle is whether the Code of Service Discipline can (or even should) permit the potential prosecution of military judges while also safeguarding judicial independence.  It is likely that, as a result of this appeal, Parliament will also have to struggle with these issues.  These are polycentric issues that are likely best left to the legislature to address.  However, the current legislated framework clearly has gaps - if not outright deficiencies - and the circumstances suggest that the CMAC (and, perhaps eventually, the Supreme Court of Canada) are well placed to provide judicial guidance to Parliament on the necessary changes. We are not remotely finished with the issue of judicial independence.

And, as an aside, it has now been more than 5 months since the embattled Chief Military Judge retired when he reached the Compulsory Retirement Age for the Canadian Forces, and there's no sign that the Governor in Council will be appointing a new Chief Military Judge any time soon.  The CDS announced his intention to retire a little over a month ago.  Like the Chief Military Judge, the CDS is appointed by the Governor in Council.  It will be interesting to see which appointment is addressed first, and what that might imply about how the current government views the importance of the independence of the military judiciary and the application of the Rule of Law in the Canadian Forces.

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