Saturday, September 18, 2021

What if the accused is a top general?

Global Military Justice Reform contributor Michel Drapeau writes here about a current challenge to the Canadian Military Justice system. Excerpt:

Briefly stated, as currently constituted, the military justice system simply cannot try an officer with the rank of general. Why? A general court martial is composed of a military judge and a panel (jury) of five military members. Pointedly, the senior member of the panel must be an officer of or above the rank of the accused. In such an instance, the only possible candidate to preside a potential general court martial of [Gen. Jonathan] Vance would be Gen. Wayne Eyre.

In my considered opinion, the latter’s previous subordinate relationship to Vance, as well as his current appointment as acting chief of the defence staff, would likely disqualify him from serving as an independent and fair trier of facts to decide at trial on the guilt or innocence of Vance.

Moreover, because all military judges hold a rank that is subordinate to that of general, all military judges would face the same conundrum as Eyre. Simply put, it is most unlikely that a general court martial could be convened to try Vance.

1 comment:

  1. Gene, based upon the excerpt you've provided, I respectfully disagree. The issue is not that Wayne Eyre's prior position as a subordinate might disqualify him. There are two more compelling reasons. First, in this circumstance, Eyre, as Acting CDS, would be the referral authority, because he is the only officer who could be construed as Vance's CO. And the accused's CO is prohibited from sitting on the panel (para 168(c) of the NDA). Arguably, a 'direct referral' from the CFNIS might be possible, but that would take a very large and liberal reading of art 107.12 of the QR&O - and that might be too large and liberal an interpretation to withstand judicial scrutiny. Second, the problem is not Eyre's prior relationship with Vance, but that the independence and impartiality of the Panel is based, in part, on the capacity of the Convening Authority (the Court Martial Administrator) from selecting Panel members, including the Senior Member, at random, from among a pool. In this case there would be no pool, and no random selection. (Although, we must remember, there are presently two serving officers at the rank of General/Admiral.) That same issue would likely make it impractical to convene a GCM Panel for a Lieutenant-General or Vice-Admiral. There are not many officers at that rank, and some might be precluded based upon friendship/apprehension of bias, leaving the remaining pool too small to be viable.

    And the rank of the judges is not really a barrier. Military judges have presided over CM of General Officers (or higher ranking officers) before, without issue. The CMAC held in R v Edwards, et. al., 2021 CMAC 2, that military judges are sufficiently independent and impartial, notwithstanding that they are subject to the executive's control of the Code of Service Discipline. There is presently an application for leave to appeal to the SCC. Personally, I believe that there is a compelling argument that there could be an apprehension by a reasonable person that military judges are not sufficiently independent because they are subject to the CSD. But the CMAC did not see it that way. We may hear from the SCC on that issue (and we may not).

    A more significant problem, is that for Vance specifically, there could be a reasonable apprehension of bias with all four military judges. Three of the military judges consistently held that his order, regarding the application of discipline to military judges, was defective. There was a year-long stand-off between those three judges and Vance when he was CDS. Were I his counsel at CM, I would certainly challenge their appointment to preside based upon that 'dialogue'. And the fourth judge was LegAd in the CDS Office while he was CDS and worked closely with him. Those are far greater concerns than disparity in rank. The military judges themselves have consistently demonstrated that the disparity in rank is not an issue, such that a reasonable person would not perceive a lack of independence and impartiality.

    I actually discussed these issues, and more, in a Blog post on 4 February 2021, shortly after the first news story broke concerning the allegations against Vance:


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