Canadian military justice has failed

by Major Tim Dunne (retired) 

From Frontline Canada magazine

20 December 2023

There is a vast difference between Canadian justice and Canadian military justice.

The Department of Justice Act gives the Minister of Justice “superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces.” But the Justice department has surrendered superintendence for military justice to DND’s Judge Advocate General (JAG) in the practice and application of the Code of Service Discipline, the portion of the National Defence Act (NDA) that mandates formal Canadian military discipline and military justice.

This single transfer of responsibility and authority between two federal departments endowed the practitioners of military justice with impunity for their grave ineptitude.

The Canadian Military Justice System

This military institution is a tri-partite organization comprising the Military Police, Judge Advocate General and Chief Military Judge.

The Military Police and its investigative arm, the Canadian Forces National Investigation Service (CFNIS) investigates and can recommend and lay charges.

Within the JAG organization, the Director of Military Prosecutions “prefers charges against” (indicts) the accused, represents DND at sentencing appeals and provides guidance to investigators. Defence Counsel Services represents civilian or military who may be charged, dealt with and tried under the Code of Service Discipline.”

The office of the Chief Military Judge is an independent federal judicial organization that operates independently from the Government of Canada, the Department of National Defence and the Canadian Armed Forces. Military judges preside at courts martial and other judicial proceedings as required.

The genesis of Anglo-Saxon-based military justice began with William the Conqueror’s invasion of the British Isles in 1066, and was predicated on rapid trial, conviction and punishment of the accused.

In both the civilian and military jurisdictions, the statutes provide a litany of offences with which an accused can be charged. The Code of Service Discipline has its own list of offences, but it contains two regulations that do not lend themselves to easy codification.

NDA Section 130, Service Trial of Civil Offences, stipulates that an act or omission (a) that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, or (b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part VII, the Criminal Code or any other Act of Parliament, is an offence and if convicted the accused can be punished under the Criminal Code or other Canadian legislation.

The Devil’s Clause

Then, there is the insidious NDA Section 129, which stipulates that “Any act, conduct, disorder or neglect to the prejudice of good order and discipline is an offence and every person convicted thereof is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.”

This catch-all provision can be used to cover any activity that a military superior deems to prejudice good order and discipline.

First brought into military law by Swedish King Gustavus Adolphus (1611-1632), who included its original version in his articles of war for the Thirty Years War (1618 to 1648), and then integrated into the articles of war of England’s King Charles I. It was retained in successive military disciplinary legislation, including the Mutiny Acts of 1689 and succeeding years, the Army Discipline and Regulation (Annual) Act of 1879 and the Army Discipline and Regulation Act of 1881.

British sailors and soldiers called it “The Devil’s Clause.”

In July 1950, Defence Minister Brooke Claxton guided Canada’s National Defence Act through Parliament as the Canadian military deployed into the Korean conflict (1950-1953). Regrettably, Claxton imported the Devil’s Clause into the Canadian legislation.

It has survived all subsequent revisions to the National Defence Act. Military superiors can use section 129 to cover any act that a military superior, in his or her opinion, believes to be prejudicial to “good order and discipline.” That gives broad latitude and can be ridiculous in its over-reach, even if a Canadian military member were to wear the wrong shade of socks with her/his uniform.

Section 129 is frequently used as an alternate to a principal charge, so if the prosecution is unable to prove the legitimacy of the principal charge, it can fall back on the alternate charge.

The deck is stacked against anyone who stands before a court martial.

Solicitor-client privilege

When civilian police investigations do not result in charges, the accused benefits from the presumption of innocence. 

But not so with Canadian military justice. If the Military Police investigation doesn’t support charges or the military prosecution is unable to make its case, the prosecution can resort to a letter, protected by “solicitor-client privilege,” that impugns the accused with words like, “… has escaped formal military discipline.”

This privileged letter is not disclosed to the accused and is immune to access under the Privacy Act or the Freedom of Information Act. But it can be provided to their superiors, their supervisors and military promotion boards.

Any suggestion that these letters are intended to enhance military discipline is spurious. If they are intended to be a disciplinary measure against delinquency by an errant service member, the presumed miscreant would have to be shown the letter and debriefed or counseled on the individual’s misconduct.

According to the Canadian Bar Association, over the past 30 years, the Supreme Court of Canada has elevated the status of “solicitor-client privilege” from a limited privilege regarding information provided through client-solicitor communication into a quasi-constitutional right.

These letters constitute denials of the right to the presumption of innocence and procedural fairness for military personnel about whom these letters are written.

The accused is left standing on the sidelines wondering why her/his career is stalled and their contemporaries are passing them in promotion.

The effects

It is axiomatic that many who come within the investigative and prosecutorial embrace of the military justice system, whether charged and tried or simply investigated, emerge from their experiences with severe after-shock. Some are so traumatized that they need psychological or psychiatric support.

In late April 2023, CBC journalist Ashley Burke broke the story about the bungled Military Police investigation of Sergeant Orman Savage, a Canadian reserve soldier sentenced to three years for sexual assault more than a decade ago.

After five months incarceration, Savage’s conviction was overturned on appeal and he was retried. In his new trial, the jury ruled in 2009 that Savage was not guilty.

Ms. Burke also reported about Major-General Dany Fortin, the senior military commander who once headed Canada's COVID vaccine roll-out. Investigated by Military Police, he was charged with sexual assault based on 33-year-old allegations. Acquitted, he launched legal action and named a series of top military leaders and politicians as defendants, along with Prime Minister Justin Trudeau.

But most shocking was the CBC TV report by CBC journalist Murray Brewster about pilot instructor Maj. Cristian Hiestand. Military Police investigators charged him with two counts of sexual assault just days after he ended a brief relationship with a civilian woman.

Hiestand reportedly asked the lead military police investigator if he could explain his side of the story and provide more context.

The investigator said MPs did not need to interview him, as they "... had all the evidence they needed to prosecute him," the family’s lawyer commented.

Unable to accept the inevitable stigma of the allegation, investigation and aftermath, Major Hiestand took his own life.

Hiestand’s situation underscores the profound level of helplessness an accused faces when confronted by the absolute rigidity of the military justice system. A military police investigator charged a serving military member, determined to proceed and was unwilling to even permit the accused to provide exculpatory evidence.

Once initiated, the continuum of investigation, assessment for charges and disposal is an unstoppable bureaucratic process, and the accused is powerless to change its trajectory. He/she can only stand by and await the inevitable conclusion – guilt and court martial or the judgment that the accused escaped formal disciplinary action.

In conclusion

As the rules of the rules-based international order are interpreted by the great powers in their own interest, the rules of the rules-based Canadian military justice system are interpreted by the major players to their advantage. Military Police corporals, sergeants and warrant officers empowered to investigate reports of wrongdoing are able to misstate, exaggerate and fabricate the circumstances of the accused. They can take the statements of the accused and of witnesses and adjust them to meet their preferences.

At best, the results are shredded careers and damaged individuals, and suicide at worst.

Not only will a charge and a trial or court martial end military careers, but also a simple allegation can begin a Military Police investigation, a process that automatically gives credence to the accuser. Military Police enthusiastically investigates allegations even if the alleged wrongdoing is the suspect’s legitimate duties and responsibilities, and the investigator can reflect those duties as infractions of military law.

“We don’t go after whistle-blowers because we do not want to discourage people from informing on their bosses,” a senior officer in the Provost Marshal’s office told me in a 2004 telephone conversation. Military Police investigation reports liberally redact names and statements, permitting accusers to provide investigators with hearsay, storytelling, exaggeration, gossip, hyperbole and lies with impunity.

This clears the way for anyone to eliminate competition for promotion, or act out of mischief, malice or retribution, and not be held accountable for their statements.

The Canadian version of the Westminster parliamentary system disallows public servants, and military and RCMP members from commenting publicly about government affairs until their retirement. They can voice a limited measure of disagreement with the system to their superiors, but it can be simply ignored or it may be the kiss of death for advancement and promotion.

This mandatory passivity has the effect of suffocating any reform and allows the system to continue the very behaviours that indicate the need for urgent change. Meanwhile, senior military officers and high-level DND authorities continue to believe they are preserving the traditions and protecting the system that served them so very well.

There is little oversight. The Military Police Complaints Commission can investigate only those complaints that are submitted; it cannot take the initiative to discover unprofessional or improper Military Police activities; and it cannot undertake issues that occurred before its establishment in December 1999.

Bill C-25 (“An Act to amend the National Defence Act and to make consequential amendments to other Acts”) initially required a review of the military justice system every five years. The First Independent Review by the Right Honourable Antonio Lamer was submitted on time on 3 Sept. 2003. The Second Report of the Second Independent Review
Authority, by the Hon. Patrick LeSage, was submitted in December 2011, three years late.

Inexplicably, the defence department was unable to meet its five-year deadline for the independent reviews, the mandated review period was extended to seven years.

The Report of the Third Independent Review Authority by the Hon. Morris J. Fish, was passed to the defence department on 1 June 2021, 10 years after the LeSage Report..

The entire Canadian military justice system has exhausted its quota of legitimacy, good faith, moral authority and credibility – it has failed the troops, the military and the nation.

It is time to consider following the example of other nations which have abandoned military justice:

• Belgium, Germany, Austria, Sweden and France, which abolished military courts in peacetime;
• The Czech Republic, which refers military disciplinary issues to the civil judiciary.
• Finland, where military prosecution is conducted by public prosecutors;
• Japan, whose military personnel are subject to ordinary criminal law.

The Defence Department’s justice system is, simply stated, dangerous to the men and women of the Canadian Armed Forces. DND senior decision-makers must pass responsibility for military justice to the criminal justice system and sweep the entire military justice system into the dustbin of history as the abysmal failure that it is.

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Major Tim Dunne is a veteran of 37 years as a Canadian Forces military public affairs officer. He has served in Canada, the U.S., Eastern and Western Europe, The Middle East and Africa. He served in peacekeeping missions in Egypt, Croatia, Bosnia Herzegovina, Kosovo and North Macedonia. He was the Chief of Media Relations at NATO’s Southern European Headquarters in Naples, Italy, from 2000 to 2004. Since his retirement in 2005 he has reported extensively on Canadian military justice issues.