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Minister attacked on two fronts over prosecutorial independence

Allegation is political pressure can be brought to bear on matters
By Cristin Schmitz
January 22 2016 issue

Ottawa military lawyer Michel Drapeau said that pushing through a legislative ‘quick fix’ of transferring the minister’s appeal powers to the director of military prosecutions would not rectify the many contradictions
and flaws in the military justice system. [Photo by Roy Grogan for The Lawyers Weekly]

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Military justice reform has unexpectedly shot to the top of the agenda for the federal government and the Supreme Court via two Charter challenges to the prosecutorial independence of the minister of national defence.

In the first case, R. v. Gagnon [2015] CMAC 2, the Court Martial Appeal Court (CMAC) struck down the power of the defence minister in late December, under Section 230.1 of the National Defence Act (NDA), to launch appeals to the CMAC of acquittals, stays, sentences etc.

The ruling relates to cases involving Canadian Armed Forces (CAF) members prosecuted under the Code of Service Discipline for crimes and other federal infractions, as well as military disciplinary offences.

In striking down Sec. 230.1, Appeal Court Chief Justice Richard Bell, and Justices Guy Cournoyer and Alexandre Deschênes, agreed that reposing the quasi-judicial power to decide whether to appeal a case to the CMAC in the defence minister — a politician and member of the executive bound by Cabinet solidarity — violates s. 7 of the Charter. Section 7 prohibits the state from depriving people of their liberty, except in accordance with the principles of fundamental justice.

“The minister has simply no objective institutional independence required for the independent exercise of a function that can lead to imprisonment of one of his employees or [the employee’s] dismissal,” Justice Cournoyer explained in translation from French.

Or, as put more bluntly by defence counsel in their factum, “the minister is the very antithesis of a prosecutor who is independent of political pressure — the minister himself is the political pressure.”

Ottawa military lawyer Michel Drapeau, a retired CAF colonel and co-author of Military Justice in Action: Annotated National Defence Legislation, said pushing through a legislative “quick fix” by transferring the minister’s appeal powers to the director of military prosecutions (DMP) — who reports to the judge advocate general (JAG) — would not rectify the many contradictions and flaws in the Canadian military justice system.

The problems include that the training, promotions, assignments, postings, and non-renewal of service of frontline military prosecutors (and defence counsel) depend on decisions by the advocate general — who is appointed at pleasure of and reports to the defence minister, he explained.

“I think it’s just the tip of the iceberg,” Drapeau told The Lawyers Weekly. “The military justice system in Canada is broken, [and]…behind the times in a substantial way.”

The three judges deciding Gagnon suspended their declaration of invalidity for six months. That leaves the new Liberal government scant time to enact new legislation.

At press time, the Department of National Defence (DND) declined to say whether Defence Minister Harjit Singh Sajjan will try to appeal Gagnon to the Supreme Court.

However seeking leave might not be straightforward since the defence minister’s right to appeal to the Supreme Court from a CMAC decision, under s. 245(2) of the NDA, is also under attack at the top court by military defence counsel in a second Charter challenge — Cawthorne v. The Queen — that also contends that the minister lacks prosecutorial independence.

According to the CAF’s director of military prosecutions “the minister of national defence, as represented by the director of military prosecutions, can seek leave to appeal the decision of the military appeal court to the Supreme Court of Canada by virtue of s. 245 of the NDA.”

Such leave must be filed with the Supreme Court within 60 days of the decision,” Colonel Bruce MacGregor told The Lawyers Weekly via email.

He added, “the effect of the declaration has been suspended…to June 21, 2016, which will preserve the minister of national defence’s ability to seek leave to appeal while allowing Parliament to formulate and pass an appropriate legislative response if applicable.”

If Ottawa does nothing within six months, military prosecutors will no longer be able to appeal to the military appeal court — not a road the majority Liberals are expected to take.

However, no legislative response would be the best-case scenario for the two respondent military members in Gagnon who face separate prosecution appeals from the dismissal of their sexual assault charges in the military courts below.

The military appeal court made the declaration of invalidity in an interlocutory decision in response to a preliminary defence motion to quash the minister’s appeal notices because his appeal power is unconstitutional.

In a move described by defence counsel as “very novel,” rather than granting the respondents a remedy dismissing the defence minister’s appeals, the judges made and suspended the constitutional declaration, and then adjourned the cases, to be resumed for argument on the merits if Parliament passes a new law enabling the appeals to go ahead. Depending on what Parliament does, a new defence challenge could emerge if the cases resume.

The military appeal court ruled that it is a Charter principle of fundamental justice that a prosecutor must be independent, and make his or her decisions free from political or other extraneous considerations — the most explicit appellate recognition of that principle to date.

“The minister is at the top of the chain of command of the Canadian Forces” yet “the military justice system must be independent of the chain of command,” reasoned Justice Cournoyer.

Seventeen years ago, that concern (among others) prompted retired Supreme Court of Canada Chief Justice Brian Dickson to categorically recommend in his Report on the Quasi-Judicial Role of the Minister of National Defence that “the minister should not be involved in prosecution decisions,” including appeals.

Dickson advised the Liberal government of the day to transfer to an independent director of military prosecutions the defence minister’s ss. 230.1 and 245(2) NDA powers of appeal to the military appeal court and Supreme Court.

Instead, the Liberals passed amendments (Bill C-25) in 1999 that put some institutional separation between the investigative, prosecutorial, defence and judicial functions of the military justice system, but which did not fully eliminate the defence minister’s quasi-judicial role.

Drapeau argues Gagnon should spark a much broader rethink and reform of the military justice system.

“The rights of our soldiers are significantly diminished by serving in the military,” he said. “A member facing a court martial does not have a right to a jury trial…whether it’s a sexual assault, or whatever serious criminal offence. What they have instead is a panel of five officers selected by the military.”

Other aspects of the civilian criminal justice system notably absent from the military justice system include hybrid offences, preliminary inquiries and suspended sentences. Moreover in summary trials, where an accused may face detention, there are no rules of evidence, no right to counsel, no transcript and no appeal, he said.

“There is a wide, wide, wide gulf between what is taking place in…[many] countries including Britain, and Canada,” Drapeau remarked. “We are more U.S. than the U.S. in our administration of martial law, and that seems to make no sense to me.”

Whatever changes happen in the wake of Gagnon, the military appeal court’s decision has broken important new constitutional ground, say the respondents’ counsel, Lieutenant-Commander Mark Létourneau and Lieutenant-Colonel Jean-Bruno Cloutier — the same defence team piloting the Charter attack in Cawthorne.

Not only did the military appeal court recognize that prosecutorial independence is a s. 7 Charter principle of fundamental justice, but it went on to strike down a provision based on the lack of prosecutorial independence — a Canadian first, they said.

“No law has ever been declared unconstitutional on the basis of a violation of this principle,” Létourneau told The Lawyers Weekly.

Cloutier said the reasoning on prosecutorial independence applies equally to the defence minister’s parallel power in s. 245(2) of the NDA to appeal military appeal court decisions to the Supreme Court of Canada.

“Why should a military member not be entitled to an independent prosecutor, an independent judiciary and an independent bar?” — just as he or she is in the civilian justice system, Cloutier queried. “I have never heard any evidence, or read anything, that would support…to have a [justice] system that doesn’t meet those requirements.”

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