Duquette v R, 2020 CMAC 4 - Remedy Pending Appeal

Last Thursday, the Chief Justice of the Court Martial Appeal Court of Canada (CMAC) handed down a decision in Duquette v R, 2020 CMAC 4 [Duquette] concerning a motion from the offender, requesting an interim remedy pending appeal.  While the decision may not have immense impact on the application of the Code of Service Discipline, there are three specific factors or issues that may be of interest to the Global Military Justice Reform community:

1. Bell CJ held that the CMAC had jurisdiction to stay the execution of a sentence of 'reduction in rank';
2. The decision whether this discretion ought to be exercised will turn on the 'balance of convenience' test from RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311; and
3. Remedies, where a conviction or sentence at court martial is over-turned on appeal, are limited to the direct consequences of the disciplinary proceeding.

The first two of these issues were the focus of the judgment in Duquette.  The judgment is brief, but I will nevertheless summarize key factors below.  However, for myself, as someone who practices within a broad context of 'military justice', including the broader application of public and administrative law within the context of the "... administration of the affairs of the Canadian Forces ...", some of the nuances arising from Bell CJ's comments in paras 16 and 17 of his judgment, are even more interesting.  Those nuances give rise to the third issue/factor I mention above.

Background

Major Duquette, as he then was, was tried by Standing Court Martial for three offences: sexual assault, contrary to section 271 of the Criminal Code, and incorporated into the Code of Service Discipline via paragraph 130(1)(a) of the National Defence Act (NDA), as well as 'conduct to the prejudice of good order and discipline' contrary to section 129 of the NDA and 'ill treatment of a person who by reason of rank was subordinate to him' contrary to section 95 of the NDA.  The judgement of the Deputy Chief Military Judge, Lieutenant-Colonel d'Auteil, can be found at R c Duquette, 2020 CM 3016 (or, in English, with the assistance of 'Google Translate').

Major Duquette was found guilty on all three charges.  As an aside, in light of the fact that the charges appear to relate to the same transaction or misconduct, I am not entirely certain if  R v Kienapple, [1975] 1 SCR 729 was factored into that conclusion, but that is not the focus of my commentary today.  The accused - offender once he was found guilty - was sentenced to a reduction in rank (to the rank of Captain).  He was also made subject to an order under the Sex Offender Information Registration Act (a 'SOIRA Order').

The judgment in Duquette also indicated that Captain Duquette would be released from the Canadian Forces some time this month (November 2020).  It is not clear from the decision whether this is a compulsory release or a voluntary release.  As I indicate below, that is a potentially relevant issue.

Captain Duquette appealed the legality of the finding of guilt and the sentence.  But, pending that appeal, he sought an interim stay of the execution of the sentence.

Motion Pending Appeal

Such motions are not uncommon when a person is sentenced to a period of detention or imprisonment.  The rationale for such motions is obvious: if the finding or sentence is subsequently over-turned, there is little or no practical recourse to 'remedy' a deprivation of liberty if that detention or imprisonment is subsequently nullified on appeal.

But what of sentences that do not directly affect life, liberty, or security of the person?  Duquette addresses that issue, and not for the first time in the Canadian military justice system.  Bell CJ characterized the application as posing two questions:

1. Does the Court Martial Appeal Court of Canada have jurisdiction to stay the execution of the reduction in rank; and
2. If the answer to the first question is yes, under the circumstances, should the Court order that the execution of that part of the sentence be stayed?

Jurisdiction to Stay Execution of Sentence

Bell CJ canvassed a variety of appellate precedent from across the country, and, in particular, R v Bichsel, 2013 BCCA 164, in which the Court of Appeal for British Columbia held that absent express legislated authority, an appellate court does not have jurisdiction to stay a SOIRA Order.  However, Bell CJ, also identified precedent, from British Columbia and other provinces, that established that "... an appellate court does have the power to stay the execution of an order." (Duquette, para 8)  In those circumstances, the courts relied upon subsection 482(1) of the Criminal Code, as well as provincial rules of procedure applicable to appeals in criminal law.

Bell CJ eventually relied upon the CMAC judgments in R v Lyons, [1992] CMAJ No 1, 5 CMAR 121 [Lyons] and Gingras v R (1982) 70 CCC (3d) 27, 4 CMAR 225 [Gingras].  In Lyons, the (then) Chief Justice of the CMAC dealt expressly with an application to suspend the sentence of 'reduction in rank'.  Mahoney CJ held that the court had the 'implied jurisdiction' to do so, but declined to exercise the discretion in those circumstances, as a successful appeal would have returned the applicants to their former ranks, rendering the application nugatory.  In Gingras, Justice Hugessen, with Justice Addy concurring, held that such power was necessarily included in the power of the Court to quash the sentence.

At para 10 of Duquette, Bell CJ held "... I consider myself bound by this Court’s judgment in Gingras, which was rendered by a panel of three judges. And even if I were not bound by it, I would follow it for reasons of judicial comity."

However, Bell CJ also distinguished Duquette, Lyons and Gingras, from his decision in R v Royes, 2016 CMAC 3 [Royes], in which Master Corporal Royes sought to have a period of incarceration suspended (specifically: 'judicial interim release pursuant to s 248.2 of the NDA' pending possible appeal to the Supreme Court of Canada).  Bell CJ held (Royes, paras 16 and 17) that the Court had no jurisdiction to do so.  In Duquette, Bell CJ clarified that the "... decision in Royes is distinct from the decisions in Gingras and Lyons because, at the time of the application for release, there was no appeal before the CMACC. This Court was functus with respect to the appeal." (para 12).  In Duquette, the motion was brought pending appeal before the CMAC, and not after the CMAC had decided the appeal and pending a hypothetical appeal to the SCC.

Balance of Convenience

Having found that the CMAC had jurisdiction to issue an interim stay of the execution of a sentence pending appeal, Bell CJ turned his mind to the 'balance of convenience test' from RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311 [RJR Macdonald].  This 3-part test poses the following questions:

1. Is there a serious issue to be determined;
2. Would there be irreparable harm if the relief were not granted; and
3. Does the balance of convenience favour granting the relief sought?

Often, when one is dealing with a relationship characterized by a marked imbalance in power (as between the Crown and a member of the Canadian Forces) if the first two questions are answered in the positive, the third will often not present a significant hurdle.

In Duquette, Bell CJ held that, while the issue was sufficiently serious, the harm would not be irreparable.  Bell CJ noted that, if the appeal were successful, Captain Duquette would be able to apply under Canadian Forces Administrative Order, (CFAO) 15-2 to correct his 'certificate of service'.  Bell CJ acknowledged: 

It is true that the captain will not have the opportunity to repeat his final interview with his commanding officer or the release ceremony in the presence of his family. During those events, he will be addressed as 'captain'. Nevertheless, in light of the possibility of having the release documents corrected, I do not consider the harm to be irreparable. (para 16).

However, Bell CJ still considered the 'balance of convenience', and concluded that it favoured the respondent (the Crown).  Noting the similarity with the judgment in Lyons, Bell CJ concluded: "The harm, if any, does not outweigh the interest of upholding the order issued by the military judge."

Limitations of Remedies

That said, and with the greatest respect, I do take issue with the conclusion that Bell CJ draws concerning the application of subsection 30(4) of the NDA - hence the third issue I enumerate at the outset of this post: Remedies, where a conviction or sentence at court martial is over-turned on appeal, are limited to the direct consequences of the disciplinary proceeding.

Recalling that (now) Captain Duquette will be release at some point this month (November 2020), Bell CJ also held: "... subsection 30(4) of the NDA provides that a member released by reason of a sentence or a finding by a service tribunal may be reinstated. I am of the view that the NDA provides partial relief for the appellant."  Respectfully, the Chief Justice misapprehends the application of subsection 30(4) of the NDA.  The NDA will not provide any remedy regarding Captain Duquette's release from the CF.

This provision states:

(4) Subject to regulations made by the Governor in Council, where 

(a) an officer or non-commissioned member has been released from the Canadian Forces or transferred from one component to another by reason of a sentence of dismissal or a finding of guilty by a service tribunal or any court, and 

(b) the sentence or finding ceases to have force and effect as a result of a decision of a competent authority,

the release or transfer may be cancelled, with the consent of the officer or non-commissioned member concerned, who shall thereupon, except as provided in those regulations, be deemed for the purpose of this Act or any other Act not to have been so released or transferred. [emphasis added]

This remedial power does not apply to an administrative decision to release a member of the CF.  It is expressly limited to the sentence of dismissal or a finding or guilt that leads to release.

It is not clear if Captain Duquette will be released voluntarily upon completion of his present Terms of Service under item 4 of the table to QR&O 15.01.  The judgment in Duquette does not specify.  However, it would not be surprising to learn that Captain Duquette was being released under item 2a to the Table to QR&O 15.01.  That would be consistent with the approach taken by Director Military Careers Administration (DMCA) where CF personnel have been found guilty of sexual misconduct before military tribunals and civilian courts and, perhaps more significantly, even where they have not been found guilty.  And that is an important distinction.  

According to the fourth, and most recent, 'Progress Report' on 'Sexual Misconduct', compulsory release is the most commonly used administrative response.  And, as the Op HONOUR policy directives state - particularly the Sexual Misconduct Incident Management Decision Tree - these decisions are distinct from, and do not require a conviction under, the Code of Service Discipline.  The policy promulgated by the CF is quick to assert that an acquittal by a court martial or civilian court of criminal jurisdiction is not determinative of a decision by DMCA that is made on a balance of probabilities (see the notes pertaining to the Sexual Misconduct Incident Management Decision Tree).

If Captain Duquette is being released pursuant to a compulsory release decision, that decision would have been made by DMCA subsequent to an Administrative Review under Defence Administrative Order and Directive (DAOD) 5019-2.  That decision would likely have relied, in part, upon the conviction at court martial.  However, it would have been a separate decision, distinct from the Code of Service Discipline proceeding.  And DMCA has consistently asserted that the outcome at court martial - specifically acquittal - is not determinative of her administrative decision.  Unfortunately for the transparency of such decision-making, those administrative decisions are not subject to the same notorious publication as decisions at court martial or by the CMAC.

The CMAC has no jurisdiction to review a 'release decision' by DMCA, although such a decision could, potentially, be relevant to the 'balance of convenience test'.

Conclusion

If Captain Duquette wished to challenge the compulsory release decision made by an administrative statutory decision-maker (DMCA) he would be obliged to grieve that decision under section 29 of the NDA.  The grievance would take far longer to adjudicate than it would take to implement the release decision by DMCA.  Consequently, the 'balance of convenience test' from RJR Macdonald would be relevant to any application to the Federal Court seeking an interim interlocutory order barring compulsory release pending the resolution of the grievance.  However, just as that would be an issue for a distinct court, it is also a separate issue for another Blog post.

If Captain Duquette is successful in his appeal of the finding (or simply the sentence), the sentence will be overturned (or, potentially, substituted).  If it is overturned, he can seek to have his rank upon release 'corrected'.  However, he will still be a former member of the Canadian Forces.  He will have still been released.  And the CMAC has no jurisdiction over a decision made by DMCA, distinct from any Code of Service Discipline proceeding.