Sunday, May 30, 2021

Canadian Military Justice Update #2

In light of the ongoing news media attention being given to aspects of military justice within the Canadian Forces, your loyal servant has undertaken to provide a weekly update of some of the key issues, topics, or news stories arising in that milieu.

This week, there were three key topics that arose, and some foreshadowing for the coming week.  This week's update will address:

1. The Notice of Motion brought by Defence Counsel Services regarding the independence of the Court Martial Appeal Court (CMAC) of Canada within the context of a series of appeals regarding the independence of military judges.

2.  The charges laid against Officer Cadet (OCdt) Kenderesi for mutiny and scandalous conduct by an officer.

3.  The ongoing media 'churn' regarding sexual misconduct in the Canadian Forces.

Finally, related to some of these matters, at least indirectly, is the anticipated public release of the Report of the Third Independent Inquiry into the National Defence Act (NDA), led by Justice Morris Fish.

Before delving into this week's topics, your loyal servant wishes to, first, recognize the Memorial Day activities by our American cousins.  Having served in multiple operational theatres alongside our American colleagues, I would be remiss if I did not offer a brief observation of this important day.  Even those of us who are not Americans will take a moment to remember our colleagues, American and otherwise, who have made the ultimate sacrifice in the service of their nation.  Similarly, yesterday, Saturday 29 May 2021, marked the International Day of United Nations Peacekeepers, an activity for which Canada became increasingly associated throughout the latter part of the 20th Century.

Independence of the CMAC

The Editor-in-Chief of this Blog, Eugene Fidell, mentioned this issue earlier in the week, citing a report by Lee Berthiaume.  Eugene also called upon readers who might be in a position to shed some light on this matter.  Your loyal servant shall do his utmost to oblige.

Throughout 2020, various defence counsel at courts martial repeatedly brought applications for stays of prosecution based upon contravention of para 11(d) of the Canadian Charter of Rights and Freedoms [Charter]: "Any person charged with an offence has the right ... to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal ...".  Specifically, they argued that military judges lacked the requisite independence from the executive - military judges, as commissioned officers of the Regular Force of the Canadian Forces, are subject to the Code of Service Discipline, over which the leadership of the Canadian Forces, led by the Chief of the Defence Staff (CDS), exercises authority.

This issue gradually escalated over time, despite various military judges clearly signalling that the exercise of disciplinary authority by the CDS or other senior officers over military judges was inconsistent with para 11(d) of the Charter.  However, the CDS would not resile from that position.  This led to several stays of prosecution in autumn 2020, including one particular case involving multiple counts of sexual assault against an officer of the Cadet Instructor Corps (CIC): R v Captain Iredale, 2020 CM 4011.  That drew media attention, which then drew the attention of the CDS.  There was then a flurry of 'damage control activity'.  However the die had been cast.

The Director of Military Prosecutions (DMP) brought several appeals of this matter and Defence Counsel Services (DCS) also brought a cross-appeal relating to the judgment of R v Capitaine Crépeau, 2020 CM 3007Appeals were brought for a total of six separate judgments, all of which imposed stays of prosecution as a result of this issue.  The judgments at first instance were not without their weaknesses, particularly the proposition that the narrow and limited process followed by the Military Judges Inquiry Committee (MJIC) somehow equated to a separate 'disciplinary code' for military judges that precluded operation of the Code of Service Discipline.  Your loyal servant prepared a paper on some of the central issues of these appeals and presented that paper at the January 'Town Hall' of this Blog community.

The first group of these appeals was heard on 29 January 2021, and the second group of appeals was heard on 11 March 2021.  The CMAC has reserved their decision.  While the CMAC tends to hand down judgments within 90 days, that has not been the case with these appeals.  Additionally, subsequent appeals and trials at first instance have been delayed while the CMAC considers this matter.

Meanwhile, the sixth and most recent Judicial Compensation and Benefits Commission (typically referred to as the Quadrennial Commission or Quad Com) convened under the Judges Act, RSC 1985, c J-1, was convened in late 2020.  This Commission, which is convened at least every four years, is responsible for inquiry into compensation for all federally appointed judges, except for military judges.  There is a separate Military Judges Compensation Committee convened under sections 165.33 to 165.37 of the NDA that serves a similar function.  Arguably, convening a separate Committee to inquire into the salaries of, on average, four military judges, when there is an extant Commission to inquire into the salaries of hundreds of other federally appointed judges does not seem to be the most efficient use of taxpayers' money.

As an aside, the current Quad Com was actually convened a little late, as the previous Commission was convened in 2015.  Doubtlessly, the current federal government would be quick to blame the current pandemic on that delay.  Oddly though, the same pandemic did not appear to be much of a barrier to increasing the salaries of Members of Parliament and Senators.

The Quad Com was established under the Judges Act (and the Military Judges Compensation Committee was established under the NDA) to satisfy the second part of the 'independence test' established under Valente v The Queen, [1985] 2 SCR 673 [Valente].  Valente concerned the independence of a provincial court judge (appointed by a provincial government, not the federal government).  However, the ratio form this judgment has also been applied to the independence requirements for federally appointed judges, including judges of Superior Courts of Justice established under section 96 of the Constitution Act, 1867.   A unanimous 7-judge bench of the Supreme Court of Canada held, generally, that the independence of judges (and the courts over which they preside) turns on three specific factors: security of tenure; financial security; and institutional independence.

Valente also factored significantly in the appeals that are being heard before the CMAC regarding the independence of military judges.  The focus of those arguments (and the arguments at the courts martial at first instance) was on 'institutional independence', the third part of the 'test' under Valente.

The salaries of judges is typically established by the executive under legislation enacted by the legislative branch.  The role of the Quad Com is to provide a transparent and unbiased manner of establishing judicial salaries, at regular intervals, in order to ensure the financial security of judges.  In other words, the role of the Quad Com is to satisfy the second part of the 'test' under Valente in conjunction with subsequent judgments, such as the Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 SCR 3.

On 11 May 2021, the Chief Justice of the CMAC, Chief Justice Bell and Justice Edward Scanlan (a justice of the Nova Scotia Court of Appeal cross appointed to the CMAC) appeared before the Quad Com.  However, the issues upon which they focused had less to do with financial security than with institutional independence.  One of the principal concerns raised by both the Chief Justice and, in particular, by Justice Scanlan, was the untenable position in which Chief Justice Bell can be, and has been, placed, as the Chief Justice of the CMAC, while also serving as a Justice of the Federal Court.

Chief Justice Bell is a judge of the Federal Court of Canada.  Like all judges of the CMAC, he is cross appointed to the CMAC from a 'source court'.  While he is the Chief Justice of the CMAC, and exercises the duties, powers, and functions of that office under the NDA, he is still subject to the exercise of duties, powers, and functions of the Chief Justice of his 'source court', the Federal Court.  In practice, this means that he can be subject to direction from the Chief Justice of a trial level court that can directly limit the time that he may allocate to CMAC-related matters, where he is the Chief Justice.

While such decisions emanate from another part of the judiciary, and not the executive or legislature, what it also means is that the legislative regime enacted by Parliament creates a circumstance in which not only the Chief Justice of the CMAC, but all judges of the CMAC, serve 'two masters': the Chief Justice of their 'source court' and the Chief Justice of the CMAC.

This can be contrasted with the Territorial Courts of Appeal for the Yukon, Northwest Territories, and Nunavut.  Like the CMAC, the Territorial Courts of Appeal sit less frequently and are drawn from 'source courts'.  However, a marked difference is that the Chief Justice of each Territorial Court of Appeal is the Chief Justice of the principal 'source court' for the relevant Territorial Court of Appeal.  The Chief Justice of the Court of Appeal of Yukon is the Chief Justice of the British Columbia Court of Appeal, the principal 'source court' for the Court of Appeal of Yukon.  The Chief Justice of the Court of Appeal for the Northwest Territories and the Nunavut Court of Appeal is the Chief Justice of Alberta, the Chief Justice of the principal 'source court' for those two Territorial Courts of Appeal, the Court of Appeal of Alberta.  That structure provides for consistency that is lacking in the CMAC.

The appearance of Chief Justice Bell and Justice Scanlan prompted a Notice of Motion by Defence Counsel Services, relating to all six appeals (and the cross-appeal) before the CMAC regarding the independence of military judges.  The Notice of Motion was brought a week after the Chief Justice and Justice Scanlan appeared before the Quad Com.  The Motion sought to bring this new evidence before the CMAC panel hearing those appeals and permit additional argument to be presented on that issue.  Of particular note is that the current appeals are being heard before a panel headed by Chief Justice Bell (along with Justice Rennie of the Federal Court of Appeal and Justice Pardu of the Court of Appeal for Ontario).  DMP, replied on 28 May 2021, opposing the Motion.

This motion will be heard based solely upon the written arguments, and we are presently awaiting that decision.  Indeed, although similar motions brought in the appeals of R v Royes, 2016 CMAC 1 and R v Déry, 2017 CMAC 1 were heard by all three judges seized with those appeals, it remains to be seen whether the Chief Justice will recuse himself from deciding this motion.  There is scope, under sub-section 235(2) of the NDA, for the decision to be delivered by a single judge.

If the Motion is granted, it will inevitably delay the judgment in the current appeals and may delay trials at courts martial.  However, if the motion is not granted, the issue will certainly be raised in any subsequent appeal, and may even be raised in courts martial at first instance.

As this matter goes to the heart of the independence of the appeal process in military justice, your loyal servant suggests that it is more likely than not that the CMAC will grant the motion.  There is precedent for such a decision, and the principal argument raised by DMP in opposition of the Motion is derived from matters win which an appellate court has handed down its judgment and is, therefore, functus officio.  That is not the present circumstances before the CMAC.

However, we will likely know the answer to that question by or before mid-June, which will likely prompt further commentary in this Blog.

Mutiny (or, more accurately: 'Endeavouring to persuade another person to join a mutiny')

A slightly more surreal matter involves the charge of 'endeavouring to persuade another person to join a mutiny', pursuant to section 81 of the NDA (as well as 'scandalous conduct by an officer', pursuant to section 92 of the NDA) against an OCdt of the CIC dating back to December 2020.  Earlier in the week, our colleague, Phil Cave posted a brief comment on this matter.  This is noteworthy both due to the rarity that such a charge would be laid and the circumstances of the alleged misconduct.

OCdt Ladislas Kenderesi appeared in uniform at what could be characterized as an 'anti-lockdown' and 'anti-vaccination' rally in Toronto.  It appears that OCdt Kenderesi had, at one time, been a non-commissioned member (NCM) in one or more armoured regiments of the Reserve Force, and more recently enrolled as an officer of the Cadet Instructor Corps (CIC).  There are reports that OCdt Kenderesi was not parading with any Cadet Squadron at the time that he appeared at the rally in December.  In any event, following his appearance at the rally - a video of which went 'viral' on social media - an investigation was initiated and Kenderesi was apparently relieved from performance of military duty, either expressly under article 19.75 or 101.09 of the Queen's Regulations and Orders of the Canadian Forces (QR&O), or was constructively barred from performing any military duties.  It was also reported that his uniforms were seized.

Ironically, had he not appeared in uniform, he would not have fallen within the jurisdiction of the Code of Service Discipline (CSD).  As a member of the Reserve Force, the CSD only applies to him under one or more of the indicia established at para 60(1)(c) of the NDA.  By virtue of wearing his uniform, he triggered the jurisdictional provision at  sub-para 60(1)(c)(ii) of the NDA.  Otherwise, none of the other jurisdictional criteria likely would have applied.

Your loyal servant is unaware of any charge of 'offences related to mutiny' that have been successfully prosecuted under the CSD since the 'modern' NDA was enacted in 1950.  I have certainly not found any reported case from the past 30 years.  Similarly, 'scandalous conduct by an officer' is rarely charged, and some of the more recent examples resulted in findings of 'not guilty'.  (However, in R v Lieutenant (Navy) Edwards, 2008 CM 2017, the accused was acquitted of the charge of "scandalous behaviour unbecoming an officer" under section 92, but was found guilty of the charge of "behaving in a disgraceful manner" under section 93 of the NDA, which had been charged in the alternative.)

There are some noteworthy aspects of these charges beyond their rarity.  Neither charge may be tried by summary trial, which will necessitate convening a court martial.  In light of the rarity of the charges, the potential complexity of some of the issues, and the potential for one or more applications under the  Charter, a court martial is the appropriate military tribunal.

Although these circumstances will likely evoke comments or memes relating to the 'Mutiny on the Bounty', a charge under section 81 of the NDA should not be confused with the related charge under section 79 of 'mutiny with violence' or even the charge under section 80 of 'mutiny without violence'.  The offence under section 81 is established where a person, subject to the CSD: (a) causes or conspires with any other person to cause a mutiny, (b) endeavours to persuade any person to join in a mutiny, (c) being present, does not use his utmost endeavours to suppress a mutiny, or (d) being aware of an actual or intended mutiny, does not without delay inform his superior officer thereof.  It appears that OCdt Kenderesi has been charged based upon the second criterion.

Although the maximum punishment for such an offence is 'life imprisonment' (which is the maximum sentence permitted under the CSD and under the Criminal Code in Canada), in light of the circumstances of the alleged misconduct, and the other charge that has been laid, there is a reduced likelihood that OCdt Kanderesi would face a punishment involving imprisonment, if he is found guilty of the alleged offence.

Interestingly, the offence of 'scandalous conduct by an officer'  (or, 'behaving in a scandalous manner unbecoming an officer') has a limited range of potential sentences.  An officer found guilty of these offences can be sentenced to Dismissal from Her Majesty's Service or Dismissal with Disgrace from Her Majesty's Service.  In light of the nature of the offence, this limited range of sentences is not illogical.  The sentence would then precipitate a compulsory release under Item 1(a) of the Table to article 15.01 of the QR&O.

Certainly, in light of the rarity for which these offences are charged, this matter has the potential to define elements of the offences as well as parameters for sentencing.

One final point worth noting is the relevant time frame.  This incident occurred in December 2020.  In effect, Kenderesi created the necessary basis for the exercise of jurisdiction under the CSD by wearing his uniform during the rally (which also likely contributed both to the notoriety of his participation and the 'interests of justice' that would be served in pursuing such charges).  The alleged misconduct was video/audio recorded and 'went viral'.  It was widely reported in December 2020.  Most of the elements of the offence were established by virtue of the widely disseminated video.

Yet it took the Canadian Forces National Investigation Service (CFNIS) six months to investigate the allegations and lay the charges.  I have commented previously about the inordinate delay arising in investigations conducted by Military Police, including the CFNIS.

Compare this circumstances to the investigation that was initiated against Major-General MGen Dany Fortin.  In that matter, the complaint was allegedly made in March 2021.  It concerned one or more allegations of an 'historical' nature dating back to 1989.  Presumably multiple witnesses needed to be identified, located, and interviewed.  Yet that investigation was completed and referred to a civilian prosecutor in the space of two months.  It would appear that Military Police generally, and the CFNIS in particular, can function 'with a sense or urgency' when it suits them.  If it suits them.

Continuing Media Churn

The issue of 'sexual misconduct' in the Canadian Forces continues to fuel media reporting, even if many of the reports are simply an opportunity to rehash the same media reports that have been presented over the past 4 months, without much new reporting.

No charges have been laid regarding the former CDS, General Jonathan Vance.  No charges have been laid regarding allegations against his successor, Admiral McDonald.  No charges have been laid against Vice-Admiral Edmundson, the former Chief Military Personnel.  There have, however, been several leaks of limited information, some of which coincidentally could be seen to assist in justifying actions and decisions by certain statutory actors.

Today, Mercedes Stephenson yet again reviewed the issue of 'sexual misconduct' on her Sunday newsmagazine program, "The West Block".  Her most recent exposé focused on allegations of 'cover ups' at Royal Military College of Canada in Kingston.  She interviewed a former 'Director of Cadets', Lieutenant-Colonel Mark Popov (retired).  She then interviewed (ambushed?) the Acting CDS, Lieutenant-General Wayne Eyre, regarding her earlier interview with Lieutenant-Colonel Popov (retired).  One of the items to which Lieutenant-General Eyre alluded was the Senior Staff Assistance Visit (SSAV) conducted in late 2016 and early 2017.  Your loyal servant has commented on some of the shortcomings of that inquiry here and here.

The news media continue to refer to the 'Deschamps Report' - the "External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces" conducted by former Supreme Court of Canada Justice Marie Deschamps.  This is typically accompanied by speculation regarding what the new inquiry, which will be led by former Supreme Court of Canada Justice Louise Arbour will conclude.  And of course, speculation abounds regarding the Report of the Third Independent Review of the National Defence Act that was conducted by former Supreme Court of Canada Justice Morris Fish, and which many anticipate will be made public next week. 

Third Independent Review of the NDA

Much as he might be tempted to speculate on the findings of Justice Fish and his team, your loyal servant is disinclined to do so, other than to suggest that Justice Fish will undoubtedly offer broad and comprehensive observations and will not hesitate to challenge the 'received wisdom' that tends to govern the application of 'military justice' under the NDA.

Justice Fish and his team have been afforded the time and resources necessary to conduct an in-depth review of the NDA.  We can anticipate some significant recommendations.  However, the two previous Independent Reviews by the late Chief Justice Antonio Lamer and Justice Patrick LeSage also made significant recommendations, and many of those recommendations have yet to come to fruition.

And while your loyal servant has asserted that he is disinclined to speculate, I will offer one closing observation regarding what we may anticipate from Justice Fish's Report. For more than 20 years, the Office of the Judge Advocate General (OJAG) of the Canadian Forces has consistently presented the Supreme Court of Canada judgement in R v Généreux, [1992] 1 SCR 259 for the proposition justifying the existence of a robust system of military justice parallel to the civil Criminal Code.  I have never been particularly convinced of the confidence that the OJAG has placed in that judgment.

First, the Crown was unsuccessful in that appeal.  The majority of the Court found that several aspects of General Courts Martial failed to comply with para 11(d) of the Charter.

Second, the issue of the merit of a parallel system of military justice was not directly challenged in Généreux.  Even the appellant, Sgt Généreux (who was represented by Guy Cournoyer, now Justice Cournoyer of the Quebec Court of Appeal and cross-appointed to the CMAC), accepted the justification for a separate system of military justice.  The passages from pages 293 to 297 of the judgment, which are repeatedly cited by DMP and other legal advisors of the OJAG as the binding justification for the establishment of a separate system of military justice, were offered by Chief Justice Lamer (writing for the majority of the Court) principally as background information.  Those passages are, at best, obiter dicta.

Arguably, the much more recent judgment of R v Stillman, 2019 SCC 40, offers a far more robust examination of this issue.  At the very least, key principles regarding that issue were actually contested in the appeal.  It would not be surprising in the least if Justice Fish were to suggest that the analysis and dicta arising in Généreux have largely, if not entirely, been overcome by judgments and legislative developments of the past 30 years.

Two examples of its declining relevance can be found in the legislative reform arising from the judgments of the CMAC in R v Trépanier, 2008 CMAC 3 and R v Leblanc, 2011 CMAC 2.  Both of these judgments dealt with legislative provisions that, arguably, were supported by, or derived from, Généreux: the right of the military prosecutor, and not the accused, to elect the type of court martial to be used (Trépanier) and the appointment of military judges for fixed 5-year, renewable terms (Leblanc).  Both of these provisions were found to be inconsistent with the Charter.

Ultimately, it would appear that the time has come to 'retire' reliance on Généreux in the context of defending the present system of military justice.


The coming weeks will continue to present issues relating to military justice in the Canadian Forces.  We can anticipate that the Report of the Third Independent Review of the NDA will be made public.  Prosecutors under the supervision of Quebec's Director of Criminal and Penal Prosecutions will likely come to a decision regarding whether any charges will be laid against MGen Dany Fortin regarding the 'historical' allegations that were raised in March.  We may even see some progress regarding allegations against other General or Flag Officers - however, based upon my experience with the timeliness of such investigations and decision-making, your loyal servant is disinclined to hold his breath.

Certainly, the news media will continue to churn away at the issue of 'sexual misconduct' even if there is relatively limited news to report.  And, if an election is called for some point during the coming weeks, the present government's handling of that 'scandal' will undoubtedly be raised in campaign speeches.  Whether it makes any difference in polling is an entirely separate matter.

However, your loyal servant will do his utmost to provide meaningful updates on Canada's military justice as the summer proceeds.

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