Chief Justice of the Court Martial Appeal Court of Canada (CMACC), B. Richard Bell, announced his retirement by posting his retirement letter on the website for the CMACC. The letter, addressed to Prime Minister Justin Trudeau, the Minister of Justice (and Attorney General), David Lametti, and the Minister of National Defence, Anita Anand, indicates that Chief Justice Bell will retire from his position as Chief Justice of the CMACC, as well as his position as a puisne Justice of the Federal Court and ex-officio judge of the Federal Court of Appeal), on 30 October 2023.
During his tenure with the CMACC, Chief Justice Bell has actively pursued reform and improvement of the CMACC. His efforts led to regular, semi-annual continuing education programs for the Court. He pursued policies for simultaneous filing of decisions in both Official Languages. He undertook to review and update the Court Martial Appeal Court Rules and the CMACC Law Reports, and to revamp the CMACC website.
One particular effort in order to improve the role of the CMACC was to support the designation of justices to the CMACC whose courts were superior courts of justice, which deal with serious criminal matters (though, not exclusively). A factor that sets the CMACC apart from most other courts whose judges are appointed federally is that judges are not appointed to the CMACC as a 'home court'. Instead, existing federally-appointed judges are designated as judges of the CMACC, which constitutes a secondary judicial function.
The CMACC is established at s 234 of the National Defence Act (NDA), which also establishes that the CMACC will be comprised of not fewer than four (4) judges of the Federal Court of Appeal or the Federal Court, and any additional judges of a superior court of criminal jurisdiction who are appointed by the Governor in Council (which includes the various provincial appellate courts).
Consequently, the CMACC is not only a statutory court (as distinguished from a court of inherent jurisdiction, such as a provincial superior court), but it also does not have its own judges. In effect, it 'borrows' its judges - including its Chief Justice (see subs 234(3) of the NDA) - from other federally-appointed courts.
Indeed, the ad hoc composition of the CMAC lies at the heart of the two unfinished "pieces of business" the Chief Justice Bell raised in his retirement letter: (a) the lack of administrative independence of the Chief Justice of the CMACC; and, (b) the limitations on the composition of CMACC panels that hear appeals. As Chief Justice Bell identifies in his letter, both of these issues lie beyond the power of the Chief Justice to remedy or reform. It will require Parliament to act legislatively, which, in turn, requires the executive branch to take the initiative. And, arguably, while these issues remain unaddressed, the CMACC risks falling behind other intermediate appellate courts.
First, unlike all other chief justices - particularly those who head intermediate appellate courts - the Chief Justice of the CMACC lacks the same administrative independence to administer and direct the efforts of his (or her) court. Not only is the Chief Justice of the CMACC limited, to an extent, by the availability of the judges from other courts assigned to the CMAC (and the fact that those judges report to their own Chief Justices in their "home courts"), but the Chief Justice himself is subject to the direction and supervision of the Chief Justice of his own "home court".
And this is not the first time that Chief Justice Bell has raised this issue. When he appeared, in 2021, before the Quadrennial Commission on Judicial Compensation and Benefits convened in 2020, Chief Justice Bell raised the same issue. And he presents a compelling argument that the Chief Justice of the CMACC should be appointed, as a primary function, to head that Court, rather than be drawn from a "home court". Chief Justice Bell did not go so far as to suggest that all CMACC judges should be appointed to the CMACC, rather than have judges of other courts assume such secondary judicial responsibilities through designations. (In light of the small volume of appeals typically heard each year, that would be difficult to justify.)
That said, in the Report of the Third Independent Review Authority to the Minister of National Defence Pursuant to subsection 273.601(1) of the National Defence Act, RSC 1985, c N-5, the Honourable Morris Fish observed that the CMACC had a large number of judges (i.e., over 70) nominally assigned to the CMACC, even though most rarely, if ever, preside over military appeals. The Honourable Morris Fish recommended (at paras 483 to 486 and Recommendation #64) that:
One particular effort in order to improve the role of the CMACC was to support the designation of justices to the CMACC whose courts were superior courts of justice, which deal with serious criminal matters (though, not exclusively). A factor that sets the CMACC apart from most other courts whose judges are appointed federally is that judges are not appointed to the CMACC as a 'home court'. Instead, existing federally-appointed judges are designated as judges of the CMACC, which constitutes a secondary judicial function.
The CMACC is established at s 234 of the National Defence Act (NDA), which also establishes that the CMACC will be comprised of not fewer than four (4) judges of the Federal Court of Appeal or the Federal Court, and any additional judges of a superior court of criminal jurisdiction who are appointed by the Governor in Council (which includes the various provincial appellate courts).
Consequently, the CMACC is not only a statutory court (as distinguished from a court of inherent jurisdiction, such as a provincial superior court), but it also does not have its own judges. In effect, it 'borrows' its judges - including its Chief Justice (see subs 234(3) of the NDA) - from other federally-appointed courts.
Indeed, the ad hoc composition of the CMAC lies at the heart of the two unfinished "pieces of business" the Chief Justice Bell raised in his retirement letter: (a) the lack of administrative independence of the Chief Justice of the CMACC; and, (b) the limitations on the composition of CMACC panels that hear appeals. As Chief Justice Bell identifies in his letter, both of these issues lie beyond the power of the Chief Justice to remedy or reform. It will require Parliament to act legislatively, which, in turn, requires the executive branch to take the initiative. And, arguably, while these issues remain unaddressed, the CMACC risks falling behind other intermediate appellate courts.
First, unlike all other chief justices - particularly those who head intermediate appellate courts - the Chief Justice of the CMACC lacks the same administrative independence to administer and direct the efforts of his (or her) court. Not only is the Chief Justice of the CMACC limited, to an extent, by the availability of the judges from other courts assigned to the CMAC (and the fact that those judges report to their own Chief Justices in their "home courts"), but the Chief Justice himself is subject to the direction and supervision of the Chief Justice of his own "home court".
And this is not the first time that Chief Justice Bell has raised this issue. When he appeared, in 2021, before the Quadrennial Commission on Judicial Compensation and Benefits convened in 2020, Chief Justice Bell raised the same issue. And he presents a compelling argument that the Chief Justice of the CMACC should be appointed, as a primary function, to head that Court, rather than be drawn from a "home court". Chief Justice Bell did not go so far as to suggest that all CMACC judges should be appointed to the CMACC, rather than have judges of other courts assume such secondary judicial responsibilities through designations. (In light of the small volume of appeals typically heard each year, that would be difficult to justify.)
That said, in the Report of the Third Independent Review Authority to the Minister of National Defence Pursuant to subsection 273.601(1) of the National Defence Act, RSC 1985, c N-5, the Honourable Morris Fish observed that the CMACC had a large number of judges (i.e., over 70) nominally assigned to the CMACC, even though most rarely, if ever, preside over military appeals. The Honourable Morris Fish recommended (at paras 483 to 486 and Recommendation #64) that:
... the Court Martial Appeal Court of Canada should be composed of 10 to 20 judges with significant criminal law experience. A majority should be judges of a superior court of criminal jurisdiction or a provincial or territorial court of appeal. Section 234 of the National Defence Act should be amended accordingly.
Additionally, at Chapter 1, paras 100 to 116 of his Report (and encompassing recommendations #4, 5, and 6), the Honourable Morris Fish repeated the theme of prior "Independent Reviews" that the Canadian Forces (CF) would be well-served by the creation of permanent courts martial based in s 101 of the Constitution Act, 1867. In light of this repeated recommendation by statutory "Independent Reviews", some thought might also be given to whether the establishment of a military court and tribunal administration service might offer some economies of scale. Indeed, some thought should likely be given to whether a judicial cadre could be established within such a framework to address both the trial and appellate level and whose jurisdiction might extend beyond solely courts martial or the Code of Service Discipline.
However, such matters are best examined at a future time.
The second unresolved issue that Chief Justice Bell raised in his retirement letter is no less important. I cannot improve upon his succinct observation in the penultimate paragraph of his letter:
However, such matters are best examined at a future time.
The second unresolved issue that Chief Justice Bell raised in his retirement letter is no less important. I cannot improve upon his succinct observation in the penultimate paragraph of his letter:
... the National Defence Act should be amended to permit the CMACC to sit in panels of 5 or 7 justices as the case may be. Currently, the CMACC is only permitted to sit in panels of 3 justices. Five or seven person panels are useful when the Court considers major constitutional issues or revisits one of its previous decisions.
Unlike most other intermediate appellate courts (e.g. provincial courts of appeal), the CMACC is limited to panels of three judges (NDA, subs 235(2)). One need not cast one's mind back very far to identify an object example wherein the CMACC, and its Chief Justice, would have benefitted from the capacity (and flexibility) to appoint a 5-judge (or even 7-judge) panel to preside over an appeal (or appeals) of significant importance.
In Beaudry v R, 2018 CMAC 4, the CMACC reviewed whether courts martial - tried before a Panel of CF personnel, which could be distinguished, in some ways, from a broader jury - violated para 11(f) of the Canadian Charter of Rights and Freedoms (Charter) insofar as the court martial presided over Criminal Code offences imported into the Code of Service Discipline by virtue of para 130(1)(a) of the NDA. This was the not first time that this issue had been raised before the CMACC. However, the issue had never been fully placed before the Supreme Court of Canada (SCC). And, while the judgments from the CMACC were, generally, relatively consistent, there were variations in analysis and findings. Indeed, in Beaudry, the CMACC split, with the majority concluding that the unavailability of a jury in courts martial that preside over Criminal Code offences (imported into the Code of Service Discipline) contravened para 11(f) of the Charter. Justices Ouellette and Gagné held that civil offences, even when incorporated into the Code of Service Discipline under s 130 of the NDA, are not offences under military law. That judgment derogated from prior CMACC decisions. Chief Justice Bell dissented.
Although the SCC eventually examined this issue in R v Stillman, 2019 SCC 40, and handed down a judgment that overturned the majority of the CMACC in Beaudry, the CMACC would nevertheless have benefitted from a more robust panel for that matter, and for other significant constitutional issues that have been raised in recent years. One of the secondary issues arising from Beaudry was the extent to which judicial comity or "horizontal stare decisis" would have been binding on a 3-judge panel of the CMACC when applying prior judgments of differently constituted 3-judge panels of the CMACC. Although that issue was expressly argued before the SCC in Stillman, and the SCC even permitted "The Advocates for the Rule of Law" to appear as interveners and to submit written and oral argument on that very point, the SCC judgment was silent on that (still unresolved) issue.
Over the past near decade, Chief Justice Bell has dedicated considerable effort in modernizing the CMACC and improving the administration of justice in the Canadian Forces (at least, as it pertains to the Code of Service Discipline). As he indicated in his retirement letter, he has accomplished several tasks in these endeavours, and has recognized the efforts of various staff and parties regarding these accomplishments. However, as he also raises in his letter, there remains much to be done, not the least of which requires legislative reform in order to ensure the administrative independence of the Chief Justice (and, thru that position, the administrative independence of the Court) and great efficiencies and flexibility in the conduct of the Court's business.
Hopefully, the Executive, to whom such initiative now falls, is listening.
No comments:
Post a Comment
Comments are subject to moderation and must be submitted under your real name. Anonymous comments will not be posted (even though the form seems to permit them).