Saturday, August 27, 2022

R v MacPherson, 2022 CMAC 8: retrospective application of jurisdiction of the Code of Service Discipline

On 23 August 2022, the Court Martial Appeal Court of Canada (CMAC) handed down its judgment in R v MacPherson, 2022 CMAC 8, upholding the judgment at first instance by Military Judge, Commander (Cdr) S. Sukstorf: R v MWO MacPherson, 2021 CM 2014

The outcome of the judgment was not particularly surprising.  On 8 September 2021, Cdr Sukstorf terminated the court martial convened to try Master Warrant Officer (MWO) MacPherson on two counts of sexual assault, contrary to section 271 of the Criminal Code, and incorporated into the Code of Service Discipline by virtue of para 130(1)(a) of the National Defence Act (NDA).  Although MWO MacPherson had been charged under the Code of Service Discipline in 2019, and the charges were preferred for court martial on 10 December 2019, the allegations dated from a period of time between August and October 1998.

Those dates were significant.  By virtue of section 70 of the NDA that was in force at that time, charges of sexual assault, alleged to have occurred within Canada, could not be prosecuted before court martial.  By virtue of significant amendments to the Code of Service Discipline introduced by Bill C-25 (An Act to Amend the National Defence Act), section 70 of the NDA was amended to remove the prohibition against prosecution, before court martial, of sexual assault, sexual assault with a weapon, and aggravated sexual assault.  These amendments were driven by public opinion in the 1990s that this lack of jurisdiction for the Code of Service Discipline hampered its capacity to maintain the discipline, efficiency, and morale of the Canadian Forces (CF).  These amendments came into force on 1 September 1999.  That factor can be contrasted with recent opinions that such charges should not be prosecuted within the 'military justice system'.

Section 70 of the NDA lists (and listed) offences that, when alleged to have been committed in Canada, cannot be tried by court martial.  [NB: The offences that were, and are, listed at section 70 cannot be tried by Summary Trial.]  The issue at trial in MacPherson was whether the amendments to section 70 of the NDA had retrospective application.  In other words, once the amendment came into force on 1 September 1999, was there jurisdiction under the Code of Service Discipline where charges were laid on or after this date, even if they were alleged to have occurred prior to that date.  The provision refers to the jurisdiction of courts martial to try the listed offences; it does (and did) not speak to the general jurisdiction of the Code of Service Discipline.

In order for a provision to have retrospective application, there must be a clear expression from Parliament as to its intention regarding the legislative amendments in question with respect to transitional provisions: R v Dineley, 2012 SCC 58.  The issue for Cdr Sukstorf was whether the legislative amendments to the NDA communicated such clear intent.  In her judgment, she offered compelling reasons why Parliament did not provide such clear expression of intent.

The CMAC concluded that Cdr Sukstorf was correct:

... There is no clear Parliamentary intent that the amendment to s. 70 of the NDA is to have retrospective effect. Furthermore, the amendment affects substantive rights of accused and convicted persons. Those include a right to be tried by jury and the right not to be subjected to more severe punishment than was available at the time of the alleged offence. Consequently, the amendment to s. 70 does not apply retrospectively. [per Bell CJ, at para 43, for a unanimous Court]

In light of Cdr Sukstorf's comprehensive and compelling reasons at trial, this outcome was not surprising.  One might be inclined to observe that this CMAC judgment is noteworthy because it decisively concludes that "Service tribunals do not have jurisdiction to try sexual assault offences alleged to have occurred in Canada prior to September 1, 1999."  While this is true, it is noteworthy for several other reasons, including:

1.  At first instance, Cdr Sukstorf considered the issue on the Court's own motion.
2.  The matter had been referred to a civil Crown Attorney, who declined to proceed.
3.  In its judgment, the CMAC offers some critical comments regarding the fairness of service tribunals.

 Court's Own Motion

The jurisdictional challenge arising in MacPherson at first instance was not raised by defence counsel.  Per Cdr Sukstorf: 

[4]               Contemplating a jurisdictional challenge before this court martial, on my own motion, I raised the concern and invited submissions from counsel on the impact of Bill C-25’s amendments to sections 69 and 70 of the NDA on this Court’s ability to try a case today that allegedly occurred prior to a service tribunal having jurisdiction.

[5]               After multiple submissions, the prosecution was able to resolve most of the concerns identified by the Court. The only remaining issue before the Court is the temporal application of the statutory amendment to section 70 flowing from Bill C-25.

In the past, some participants and observers of Canada's military justice system have suggested that counsel at Defence Counsel Services (DCS) bring 'too many' applications under the Canadian Charter of Rights and Freedoms (Charter). Some complain that, rather than testing prosecutions on the merits of the evidence, DCS too readily relies on broad challenges of the structure of the Code of Service Discipline, which are then brought in nearly every contemporaneous court martial, regardless of the nature of the charges laid.  Certainly, that arose in the series of applications and motions pertaining to judicial independence that culminated in the CMAC judgment in R v Edwards, et. al, 2021 CMAC 2

However, the role of DCS is not just to test the evidence presented by Director of Military Prosecutions (DMP) and the Canadian Military Prosecution Service (CMPS), but also to test the nature and structure of the military justice system. 

The author of the present Blog post has consistently suggested that most significant reforms of Canadian's military justice system are the result of challenges before courts of competent jurisdiction, often at the appellate level.  See, for example: In the Current Dialogue with the Military Judiciary, the CDS isn’t Listening.  Consequently, such applications and challenges play a vital role in ensuring that the military justice system reflects modern norms of fairness, efficiency, and justice.

Consequently, it is surprising that this key issue was raised by the Military Judge on the Court's own motion, rather than by defence counsel.

Civil Crown Declined to Prosecute

The Court's motion is that much more profound as it appears that authorities within the CMPS tried - twice - to transfer this matter to the civil criminal justice system, quite possibly because they perceived a potential jurisdictional problem.  The author of the present Blog post has discussed this issue previously: R v MacPherson, 2021 CM 2014 – What were they thinking?

In both instances, it appears that the Crown Attorney in the relevant jurisdiction (Fredericton, New Brunswick) declined to prosecute the allegations.  The reasons have not been the subject of public discussion.  That, too, is not surprising, as such reasons are rarely announced in a public and notorious fashion.  However, in light of the news media furor over the past few years regarding the failure to prosecute allegations of sexual assault in both the civil and military justice systems, the likeliest reason is the absence of a reasonable prospect of conviction.  Moreover, in light of the aversion to public criticism that many prosecutors have demonstrated regarding this subject matter, the threshold for concluding that there is a reasonable prospect of conviction is not high.

That raises the issue of 'venue shopping'.  And that issue ought to be of significant concern for those interested in Canada's military justice system in light of the decision by the Minister of National Defence (MND), the Honourable Anita Anand, last November, directing that all allegations of criminal sexual misconduct arising within the CF would be referred to civil courts of criminal jurisdiction, civil prosecutors and, where possible, civil police.

The MND's authority to issue such direction directly to DMP and the Canadian Forces Provost Marshal should be the subject of scrutiny: The MND’s New Policy and the Rule of Law.  However, that is not the focus of the present blog post.  What we should consider is whether such venue shopping might constitute a prosecutorial abuse of process.  In MacPherson, DMP was prohibited from proceeding because the amendment to section 70 of the NDA, effective 1 September 1999, did not have retrospective application. 

But what if that were not at issue?  What if a more recent allegation were the subject of a charge laid by way of information before a civil court of criminal jurisdiction?  What if the relevant Crown Attorney chose not to prosecute, and that decision was manifested by withdrawal of the charge (rather than a prosecutorial stay)?  That would not bar prosecution within the military justice system.  Or, what if, as appears to have happened in MacPherson, the CF referred allegations to a Crown Attorney, and the Crown Attorney declined to prosecute (possibly because she or he concluded that there was no reasonable prospect of conviction)?  And what if DMP then decided to pursue the matter before court martial, notwithstanding the MND's direction to the contrary?

This is a pertinent concern at the moment.  Despite the MND's direction in early November 2021, according to information retrieved on 27 August 2022 from the Chief Military Judge's website (or, perhaps more accurately, the Acting Chief Military Judge's website, since the Governor in Council has still not designated a substantive Chief Military Judge following the retirement of Colonel Mario Dutil on 20 March 2020), 40% of the courts martial scheduled between September 2022 and September 2023 concern allegations of criminal sexual misconduct.  11 of the 30 scheduled courts martial involve at least one count of sexual assault contrary to section 271 of the Criminal Code, plus a 12th court martial has been convened to try a count of 'indecent acts' contrary to section 173 of the Criminal Code.

Despite a great deal of sound and fury accompanying the MND's announcement, it does not appear to have translated into her stated outcome.  And observers of Canada's military justice system would do well to consider or inquire whether any of these charges had been referred to a civil Crown Attorney to prosecute before the civil criminal justice system, and were declined.  Part of the challenge in posing such questions is that such decision-making is not particularly transparent.  Unlike judgments of courts martial or the CMAC, such decisions are not publicly available.  It is not evident on the face of each matter whether the charges were first referred to the civil justice system.  Indeed, it is not certain whether the accused and his or her defence counsel would necessarily be informed of such communications between DMP and civil Crown Attorneys.  What is clear is that allegations of sexual assault are still being prosecuted before courts martial, notwithstanding the MND's policy statement.  What we do not know is why that continues to be the case.

Questions posed by the author of the present blog post, nearly 10 months ago, still do not have any clear answers: Minister of National Defence Announcement – Sexual Misconduct.  And we can now add the question: Is the continued prosecution of such offences before court martial indicative of 'venue shopping'?

Criticism of the Military Justice System

Observers would also do well to consider some of the criticisms offered by the CMAC in its judgment.  In many ways, this judgment went beyond the narrow jurisdictional issue pertaining to section 70 of the NDA.  The unanimous judgment was attributed to the Chief Justice of the CMAC, but he was joined by two noteworthy jurists from two provincial Courts of Appeal: Justice Gary Trotter, of the Ontario Court of Appeal and Justice Elizabeth Bennett of the British Columbia Court of Appeal.  Prior to his appointment to the bench, Justice Trotter was a leading scholar in the area of criminal law, and he brought that knowledge to the bench of the Ontario Court of Justice, Superior Court of Justice, and now the Ontario Court of Appeal. Justice Bennett, also has considerable experience on BC's Supreme Court (a Superior Court of Justice) and the BC Court of Appeal, and had been a member of the Reserve Force component of the Canadian Forces. 

Their inclusion on the Panel hearing the appeal in MacPherson is significant.  Many of the judges of the CMAC are drawn from the Federal Court and Federal Court of Appeal, and may have limited exposure to criminal law and the constitutional issues arising in that context.  Justices Trotter and Bennett are no strangers to criminal law issues.  Their involvement in this appeal lends further weight to the judgment.

And note that three reasons that Chief Justice Richard Bell offers regarding the manner in which the "... substantive rights of accused persons are affected ... by the amendment to s. 70 of the NDA.":

[40] First, in the military justice system sexual assault can only prosecuted by indictment. In the civilian justice system, the Crown has the option, in less serious cases, of proceeding by way of summary conviction. The possibility of proceeding by summary conviction results in potentially lesser punishment and, most importantly, an earlier opportunity for record suppression under the Criminal Records Act, R.S.C., 1985, c. C-47; five years for summary conviction offences as opposed to 10 years for indictable offences (see s. 4). In my view, this has an impact on a convicted person’s right not to be exposed to a more severe punishment under s. 11(i) of the Charter.

[41] Second, prior to the amendment, the Respondent had a guaranteed right to a jury trial for determining his guilt or innocence. That guaranteed right was lost with the amendment. Although there are some similarities between a trial by jury in the civilian criminal justice system and a trial by a general court martial (panel) in the military justice system, the two modes of trial are not the same. See, R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144 at paras. 67-68. A court martial panel consists of a panel of only five (5) individuals whereas a jury consists of 12 individuals, “thereby lowering the threshold for a finding of guilt” (Stillman, at para. 68). Given that the amendment to s. 70 moved an accused from having an unqualified right to trial by jury to the potential of being tried by a panel of five as contemplated by the exception set out in s. 11(f) of the Charter (trial by military tribunal), an accused’s constitutional rights are impacted by the amendment.

[42] Third, conditional discharges are not available under the CSD. In my view, this also affects an accused’s right not to be exposed to more severe punishment. See, in this regard R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, where Charron J. for the Court opined:

[…] Likewise, if the punishment for an offence has been varied between the time of commission and the time of the sentencing so as to abolish the availability of a conditional discharge for that offence, it could not be argued that the conditional discharge did not constitute a “punishment” within the meaning of the s. 11(i) protection. The accused would be entitled to the benefit of the less severe sanction in force at the time of the offence.

(at para. 61)

It is noteworthy that the CMAC expressly mentioned the lack of availability of a conditional discharge.  For a further elaboration on the impact of the exclusion of 'conditional discharges' under the Code of Service Discipline, consider: Why are Conditional Discharges not available to Courts Martial in Canada?

Ultimately, the CMAC's judgment was similar to that of Cdr Sukstorf at first instance.  The Court held that, contrary to the position taken by DMP, the 'transitional provision' at clause 98 of Bill C-25 did not apply to section 70 of the NDA: "Clause 98, which addresses jurisdiction over the person (and not the offence), was intended to ensure there was no interruption to the jurisdiction over the 'person' and has no bearing on the temporal application of the amended s. 70."  That would appear to make sense, as clause 98 of Bill C-25 stated:

98. Every person liable to be charged, dealt with and tried under the former Code of Service Discipline immediately before the coming into force of this section may be charged, dealt with and tried under the new Code of Service Discipline.

Prior to the coming into force those provisions under Bill C-25, a CF member, accused of sexual assault in Canada, could not be tried under the former Code of Service Discipline because of the substantive impact of jurisdiction of section 70 of the NDA, as it was prior to 1 September 1999.  Thus, they were not liable to be tried under the former Code of Service Discipline.  As the CMAC held: "There is no specific transitional provision in Bill C-25 which applies to the s. 70 amendment. Parliament could have provided such a provision with respect to s. 70, but, chose not to do so."

What's Next?

We must now wait to see if DMP will seek leave to appeal this judgment to the Supreme Court of Canada (SCC).  If DMP does so, it is worth noting that we are still waiting to learn if the SCC will grant leave to appeal the CMAC judgment in R. v. Edwards; et. al., 2021 CMAC 2, regarding the independence of the Military Judges.  That Application for Leave (SCCA Docket #39820) has been complete since mid-February 2022.  In R v McGregor, 2020 CMAC 8, the Application for Leave to Appeal took approximately four months to adjudicate once the Application for Leave was registered as complete.  McGregor was heard by the SCC on 19 May 2022.

1 comment:

  1. The Editor wishes to thank contributor Rory Fowler for yet another excellent post on Canadian developments.


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