In
R. v. Gagnon, 2015 CMAC 2, the accused was acquitted of a charge of sexual
assault prosecuted as a service offence before a military court pursuant to
s.130 of the National Defence Act (Act). The Minister of National Defence
(Minister) appealed to the Court Martial Appeal Court (CMAC) against the
acquittal.
Sections
230.1 and 165.11 of the Act give the Minister the right to Appeal:
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Appeal by the Minister ”
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“230.1 The Minister, or counsel instructed by the
Minister for that purpose, has, subject to subsection 232(3), the right to
appeal to the Court Martial Appeal Court from a court martial in respect of
any of the following matters: ”
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“(a) …….
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“(b) the legality of any finding of not
guilty;”
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“165.11 The Director
of Military Prosecutions is responsible for the preferring of all charges
to be tried by court martial and for the conduct of all prosecutions at
courts martial. The Director of Military Prosecutions also acts as
counsel for the Minister in respect of appeals when instructed to do so.
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“[Emphasis added]”
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Counsel
for the accused filed a motion to quash and dismiss the appeal on the
constitutional ground that the Minister could not reasonably be perceived as an
independent prosecutor who could act in an autonomous manner and independently
from the chain of command for the overarching reason that he is the head of
that chain.
The
CMAC ruled that, at every step of the judicial process, section 7 of the
Canadian Charter of Rights and Freedoms (Charter) guarantees an accused the
constitutional right to an independent prosecutor.
By
“independent prosecutor” the CMAC meant a person who may act and be reasonably
perceived to be acting independently and impartially in deciding the nature and
scope of prosecutions. In the case at hand, it found that the Minister could
not reasonably be perceived to be an independent prosecutor acting freely.
Therefore
it concluded that section 230.1 of the Act violates section 7 of the Charter
and is not a reasonable limit to that section which can be justified in a free
and democratic society.
While
the Chief Justice of the CMAC agrees with the conclusion and most of the
reasons given by Cournoyer J. A., nevertheless he went on to express the view
that the Minister should keep a supervisory power over prosecutions in the
penal military justice system. However, he added, that power should be subject
to the same limits applicable to the powers of the Attorney General.
In the end the
CMAC was unanimous in its conclusion that the right of appeal should be
conferred upon the Director of Military Prosecutions. While this is what the
CMAC could do best in the circumstances, the fact is that the end product is
only but a poultice for the following reasons.
While the Director
of Military Prosecutions (DMP) is appointed for four years, his entire Prosecution
Service is under the general supervision
of the Judge Advocate General (JAG) who is the head of the legal chain of
command. The same holds true for the Director of Defence Counsel Service who,
together with his staff, also falls under the supervision of the JAG.
Moreover, it is the JAG who provides these
Directors with the legal officers required to act as prosecutors and defending
officers at courts martial.
Indeed, pursuant to art 4.08 of the
QR&O’s, the JAG exercises command over every other “legal officer whose duty is the provision of legal services to the
Canadian Forces”. Exercising full authority for the command,
management, control and administration over all its assigned human (civilian
and military) resources, the JAG possesses plenipotentiary powers over the
career, postings, assignments, promotions and professional advancement
opportunities of each one of these legal officers.
Hence
any notion that legal officers operating within the DMP or DDCS are independent
and impartial is purely illusory. As an aside, this might explain the
reason why over the past decade and a half not a single DDCS officer was
selected for appointment to the military bench, a selection process which also
falls within the ambit of the JAG’s influence given his additional responsibility
for the superintendence of the military justice system.
In the civilian
justice system both the Prosecution and the Legal Aid Services act under the
supervision of the Attorney General who, contrary to the JAG and for that
matter the Minister, is and is reasonably perceived to be independent.
For
sake of clarity and to remove any ambiguity, it should not be forgotten
that the Minister of National Defence, like any other minister of the Crown, is
bound by the rules and principles of ministerial responsibility and cabinet
solidarity. The Attorney General, as the Chief law officer for the Crown, is
not subject to the same fetters when exercising his unique functions relating
to the administration of justice.
As
held in Law Society
of Alberta v Krieger: 2002 SCC 65, [2002] 3 SCR 372 :
“It is a constitutional principle in this country that the Attorney General
must act independently of partisan concerns when supervising prosecutorial
decisions.” If political considerations which, in the broad sense may
affect any government, in the abstract arise, it is the Attorney-General,
applying his judicial mind, who has to be the sole judge of those
considerations, and no one else. [See: UK, H.C. Debates, vol. 483, cols.
683-84, (29 January 1951) when the Attorney General of England, Sir Hartley
Shawcross (later Lord Shawcross) described the proper relationship between the
Attorney General and Cabinet colleagues.]
Therefore, while
on paper the Canadian military Prosecution and Defence Services appear to be
independent, the fact remains that the lawyers working in these services are
part of the JAG chain of command and, as previously mentioned, they act under
the control, management and supervision of the JAG. They have their performance
evaluated by the chain of command. Their selection for service within these
directorates, their subsequent postings, appointments and promotions are all
determined by the JAG chain of command to which they are totally subservient
and obedient.
In the end, while
a poultice is most welcome in the circumstances, it is at best a transitory
treatment. Most obviously strong and pressing legislative medicine is necessary
as it is a long way, too long, overdue. At present the Canadian military
justice structure remains a throwback to the days of the British or Colonial
Empire.
