Thursday, July 21, 2022

Kevin Vuong, the Code of Service Discipline, and the importance of accurate reporting

On 20 July 2022, the Canadian Broadcasting Corporation (CBC) reported on a Code of Service Discipline charge against Kevin Vuong, an 'Independent' Member of Parliament (MP) and a Reservist with the Canadian Forces. 

Mr. Vuong had been a candidate for the governing Liberal Party of Canada in the 2021 federal election.  On 16 September 2021, four days before the federal election culminated, the Toronto Star reported that, in April 2019, Mr. Vuong had been charged with sexual assault before a civil court of criminal jurisdiction.  The charge was withdrawn six months later - which is as close to exoneration as Mr. Vuong can likely hope to achieve. On 18 September 2021, two days before the federal election culminated, and after asking Mr. Vuong to 'pause' his campaign, Prime Minister Justin Trudeau stated that Mr. Vuong would not be permitted to sit in the Liberal caucus if he were elected.  Mr. Vuong was elected with nearly 40% of the votes cast in his constituency. 

Mr. Vuong is also a Sub-Lieutenant in the Naval Reserve, a formation within the Canadian Forces (CF).

The CBC initially reported that Mr. Vuong would appear at a Summary Trial before the Deputy Commander of the Naval Reserve on Wednesday 20 July 2022.  He was charged - according to the CBC - for failing to inform his chain of command of the charge laid against him before a civil court of criminal jurisdiction (i.e., sexual assault, contrary to section 271 of the Criminal Code).

The CBC subsequently reported that Mr. Vuong 'admitted to all the particulars' of the charge laid against him.  He was found guilty and fined $500.00 by the presiding officer, Captain (Navy) Etienne Landry.

The CBC did not indicate the specific 'particulars' of the charge.  While the CBC did not expressly indicate the specific section of the National Defence Act (NDA) under which the charge was laid, they did state that it was for "conduct to the prejudice of good order and discipline", which implies that the charge was laid under section 129 of the NDA.  Presumably, the charge was laid for failing to comply with a "... regulation, order or instruction published for the general information and guidance of the Canadian Forces or any part thereof ...".

The CBC also did not explain why this matter was tried as a summary trial, notwithstanding that the new provisions for summary hearings (which are distinct from summary trials) came into force a month ago on 20 June 2022.  Presumably, Mr. Vuong was charged under the Code of Service Discipline prior to 20 June 2022, in order to preserve the jurisdiction of a summary trial.  Otherwise, there would be no jurisdiction to proceed with a summary trial in light of the amendments made to the Code of Service Discipline effective 20 June 2022.

But this matter is noteworthy for other reasons as well.

First, according to the earlier of the two CBC reports, Mr. Vuong had "... elected to undergo a summary trial ..." rather than, presumably, a more formal court martial which has greater procedural and substantive measures to protect the rights of the accused.  One its face, this would appear to suggest that Mr. Vuong was offered an election for court martial, despite being (presumably) charged with an offence under section 129 of the NDA and which, ostensibly, could be characterized as a 'deportment' related offence.  The same was true for the reservist Warrant Officer James Topp.  This would stand in marked contrast with other instances over the past several months in which CF decision-makers have improperly, unreasonably, and unlawfully withheld the right to elect trial by court martial for CF personnel charged under section 129 of the NDA.  And some (if not all) of those decisions, improperly withholding a statutory right to elect trial by court martial, were supported by legal advice from the Office of the Judge Advocate General (OJAG).

For further elaboration on this issue, please see: Some Observations on ‘Military Justice’ at Summary Trial (25 May 2022). [NB: Due to the recent significant amendment of the Queen's Regulations and Orders for the Canadian Forces (QR&O), some of the legislative links in that article are now inactive.]

There is also at least one application for judicial review before the Federal Court of Canada on this specific issue.

However, strictly speaking it is not that Mr. Vuong 'elected' to be tried by summary trial; it is more accurate to state that he waived his right to be tried by court martial and acceded to the jurisdiction of a summary trial.  And that is due to the significant passage of time between when the offence allegedly arose (sometime in 2019) and when the Code of Service Discipline charge was laid, and brought before a military tribunal.  Under sub-section 164(1.1) of the NDA, repeated at article 108.12 of the QR&O (as they existed prior to 20 June 2022), a superior commander performing the functions of a presiding officer at summary trial only had jurisdiction if a charge was laid within six months after the date the offence was allegedly committed and the summary trial must commence within one year of the charge being laid.  In light of the time that has elapsed, this is not possible.

Under article 108.171 of the QR&O (as they existed prior to 20 June 2022), the accused has the option to waive these limitation periods.  If the accused does not do so - and the accused is under no obligation to do so - then the charge must be referred to the Director of Military Prosecutions (DMP) for court martial in order for the charge to proceed.  Therefore, it would have been more accurate to state that Mr. Vuong chose to waive the limitation period(s) established under the NDA in order to permit the presiding officer to exercise jurisdiction at summary trial.

That raises several unanswered questions.  Why did Mr. Vuong waive the limitation periods that would have afforded him greater procedural and substantive protections of his rights?  Why did CF decision-makers take so long to lay a charge and then proceed under the Code of Service Discipline?  It could be that CF authorities were unaware of the civilian criminal charge that had been laid against Mr. Vuong until it was reported by the Toronto Star on 16 September 2021, shortly before the conclusion of the last federal election.  (And the timing of that news report was more than a little suspect.)  But that doesn't explain why it then took CF authorities a further 10 months to lay the charge and proceed with a summary trial.

Finally, in the first of the two reports mentioned above, the CBC initially - and incorrectly - reported that Mr. Vuong had been charged under the Code of Service Discipline for "... failing to disclose that he was criminally charged with sexual assault in 2019."  The second report - published after Mr. Vuong was found guilty at summary trial, repeated the contention that Vuong was found guilty and fined for "...  failing to inform his commanding officer of a criminal charge against him." 

The QR&O do not establish any obligation on any CF member to report to his or her commanding officer that he or she has been charged by a civil authority.  Although the CBC did not report the specific particulars against Mr. Vuong, presumably he was charged under section 129 of the NDA for failing to comply with article 19.56 of the QR&O, which states:


Where an officer or non-commissioned member has been arrested by a civil authority, the member shall cause the arrest to be reported to the member's commanding officer.

The first of the two CBC reports cited above did mention the obligation to report an arrest: "Members of the military are required to inform their commanding officer if they're arrested by a civil authority. Court documents show Vuong was charged in April 2019 in Toronto with a single count of sexual assault, which the Crown withdrew six months later."

However, that same report appeared to conflate reporting an arrest with reporting a charge, even though such actions represent different, discrete actions that may be taken by civil authorities.  And the reporter repeatedly referred to a supposed obligation by CF personnel "... to disclose ... charges to their commanding officer ...".  No CF member is under any regulatory or statutory obligation to report to his or her commanding officer that they have been charged by civil authorities.  They are only obliged to report arrest. 

Moreover, the relevant regulatory provision indicates that the CF member must "... cause the arrest to be reported ...".  This does not equate to personally reporting it to a commanding officer.  Nor is there any indication that the CF member must provide any details regarding the arrest (e.g., the specific offences alleged or charges laid).  There may be compelling reasons why a CF member may wish to report such additional information.  However, the QR&O do not expressly require such reporting.

What is not addressed in the CBC reports is the extent to which the obligation at article 19.56 of the QR&O applies to a Reservist who is, by statute, not serving on continuous full-time service. Although it appears that Mr. Vuong 'admitted to the particulars' of the offence, that does not present any actual analysis of the merit of the charge.  Nor does a finding of guilt by the presiding officer - a layperson who likely has no legal training beyond a 2-day Presiding Officer Certification Course - necessarily offer a reliable basis to conclude that discrete legal issues have been canvassed and analyzed thoroughly.

We know that, pursuant to paragraph 60(1)(c) of the NDA, a member of the Reserve Force is subject to the Code of Service Discipline only when he or she is: (i) undergoing drill or training, whether in uniform or not; (ii) in uniform; (iii) on duty; (iv) called out under Part VI [of the NDA] in aid of the civil power; (v) called out on service; (vi) placed on active service; (vii) in or on any vessel, vehicle or aircraft of the Canadian Forces or in or on any defence establishment or work for defence; (viii) serving with any unit or other element of the regular force or the special force; or, (ix) present, whether in uniform or not, at any drill or training of a unit or other element of the Canadian Forces.

If none of those factors applied to Mr. Vuong when he was arrested by civil authorities, it is debatable whether he was under any obligation to report his arrest at a later time, when one of those jurisdictional factors did apply to him.  However, there are insufficient details to facilitate a meaningful analysis whether Mr. Vuong actually faced an enforceable compulsion to report his arrest.

There was no obligation on Mr. Vuong to offer any statements that could be self-incriminating.  No CF member is under any obligation to report to his or her chain of command anything that would be self-incriminating.  [See, for example, R v Sergeant Thompson, 2008 CM 2010]  However, the principal justification for article 19.56 of the QR&O is that the arrest of a CF member could, potentially, render him or her unavailable for service, if only temporarily.  The obligation is to report the fact of arrest; there is no obligation to report anything more than that (although, I would not be at all surprised if members of the 'chain of command' were to press a subordinate - potentially improperly - for further details arising from an arrest).

There remains a potentially debatable point of law regarding whether a member of the Reserve Force, who serves on a non-continuous part-time basis, and only with his or her consent, would be under any obligation to report an arrest that arose when he or she was not subject to the Code of Service Discipline.  And the fact that a layperson found Mr. Vuong guilty at a summary trial in this specific circumstance does not present a compelling or reliable basis to conclude that this is a settled issue of law.

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