Tuesday, October 6, 2020

Judicial independence: an issue that refuses to die

There's been another important development in Canadian military justice. In the latest in a string of decisions, a military judge has stayed the sexual assault case of R. v. Iredale, 2020 CM 4011. In the wake of R. v. Edwards, 2020 CM 3006 and R. c. Crépeau, 2020 CM 3007 – which were followed in turn by R. c. Fontaine, 2020 CM 3008 - Military Judge Commander (Cdr) Pelletier determined that Capt. Iredale's right to an independent and impartial tribunal, as enshrined in ¶11(d) of the Canadian Charter, was infringed by an October 2, 2019 order of the Chief of the Defence Staff. That order appointed the Deputy Vice Chief of the Defence Staff to exercise the powers and jurisdiction of a commanding officer with respect to any disciplinary matter involving a military judge. Capt. Iredale, an officer serving part time in the Cadet Organizations Administration and Training Service, faced three charges of sexual assault and three of conduct to the prejudice of good order and discipline for using inappropriate language to another (adult) officer. In Iredale, Cdr Pelletier revisits his earlier ruling in R v. Pett, 2020 CM 4002, that, although the CDS's order infringed ¶11(d), sections of the National Defence Act (NDA) at the source of that order and jurisdiction over military judges are still constitutional. The issue now is the appropriate remedy. Pett declared the CDS order unlawful and of no force or effect, apparently in the expectation that the order would be rescinded. But the order remained in force, notwithstanding the strong of subsequent decisions by other military judges who made similar declarations. The defense argued in Iredale that the Pett remedy did not go far enough. Not only was the order problematic, but the legislative framework which allowed or required it to be issued also infringed the accused’s right to an independent tribunal. Consequently, according to the defense, NDA §§ 12, 18 and 60 must “be declared unconstitutional as they render every military judge incapable of being, or appearing to be, independent and/or impartial when presiding a court martial.” In response, military prosecutors insist that the CDS's order poses no threat to judicial independence and does not violate ¶11(d) -- it merely clarifies who can lay charges against a military judge and try him or her before a court-martial. The prosecution also argued that, should the court conclude that there a Charter violation, other remedies are more suitable. For example, the court could repeat its Pett declaration, and if that is insufficient, terminate the proceedings. That would not preclude prosecution, at least as it pertains to sexual assault charges, before a civilian court. In essence, Cdr Pelletier drew the same conclusion he did in Pett concerning the CDS's order. It “generates legitimate concerns of judicial independence and violates the rights of any accused before a court-martial under paragraph 11(d) of the Charter …” (para. 27). Regarding the legal framework that is the source of such an order, he did not change his mind: absent the CDS order, the current legal framework “offers sufficient guarantees of judicial independence to allow military judges to be perceived as independent and impartial, in conformity with paragraph 11(d) of the Charter.” (para. 30). Therefore, NDA §§ 12, 18 and 60 are not unconstitutional (para. 39). Regarding the remedy, however, he came to a different conclusion from the one in Pett. Applying the three-pronged test of R. v. Babos, [2014] 1 SCR 309, Cdr Pelletier determined that the restraint in Pett was no longer appropriate. As no action had been taken by the CDS in relation to the order since Pett, circumstances had changed. As a result, concluded that a stay of proceedings, pursuant to subsection 24(1) of the Charter, was "the only appropriate and just solution in the circumstances.” CBC has reported that shortly after Cdr Pelletier’s decision in Iredale, the CDS suspended (but did not rescind) his order. As an indication of how these proceedings might unfold, Cdr Pelletier wrote that the judgments in Edwards and Crépeau are on prosecution appeal to the Court Martial Appeal Court of Canada. He was also informed that Fontaine would be appealed and that the defense had cross-appealed Edwards and Crépeau. The cross-appeal calls into question the decision not to issue a declaration of unconstitutionality with respect to of the legislation that governs the liability of military judges under the disciplinary scheme applicable to officers. Gilibert and Sullivan's "Here's a pretty kettle of fish" from Iolanthe would seem to apply.

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