Parliamentary control of Armed Forces: a matter of national urgency and public interest

OTTAWA—In 2014, the national media was awash with reports of sexual misconduct and harassment in the military, fuelled, in large part, by a front-cover exposé published in L’Actualité and Maclean’s magazines. Concerns about inappropriate sexual conduct in the Canadian Armed Forces also became the subject of intense review by a parliamentary committee. Retired justice Marie Deschamps of the Supreme Court of Canada conducted a subsequent external examination. The examination also addressed the underlying concerns with respect to the integration and treatment of women in the military and captured the environment in which CAF members train, work, live, and socialize. One of the most significant findings made by the external review is that military members, in overwhelming numbers, do not report incidents of inappropriate sexual conduct. During the same period, the public became well aware of the case of corporal Stéphanie Raymond, a young reservist who made allegations of a December 2011 sexual assault by warrant officer André Gagnon, one of her hierarchical superiors in an armoury in Lévis, Que. Charged after a three-year hiatus with one count of sexual assault under Sec. 130 of the National Defence Act , Gagnon was tried at a General Court Martial in Québec City in August 2014. He was acquitted by the court martial. However, pursuant to Sec. 230.1 the Minister of National Defence Act filed before the Court Martial Appeal Court an appeal against the acquittal in September 2014. In October 2014, defence counsel for retired warrant officer Gagnon 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 and one who could act in an autonomous manner and independently from the military chain of command for the overarching reason that he is the head of that very chain. In its judgment rendered on Dec. 21, 2015, (R v Gagnon, 2015 CMAC 2), the CMAC held that an “independent prosecutor” meant a person who may act and be reasonably perceived to be “acting independently and impartially” in deciding the nature and scope of prosecutions. For emphasis, the CMAC ruled that, at every step of the judicial process, Sec. 7 of the Canadian Charter of Rights and Freedoms guarantees an accused the constitutional right to an independent prosecutor. In the case at hand, it found that the minister could not reasonably be perceived to be an independent prosecutor acting freely. It concluded that Sec. 230.1 of the act violates Sec. 7 of the Charter and is not a reasonable limit to that section which can be justified in a free and democratic society. It found that the provision violated the right to be prosecuted by an independent prosecutor and declared the right of appeal of the minister of National Defence under Sec. 230.1 of the NDA to be unconstitutional. However, the court suspended its declaration of invalidity for six months. The opinion of the court was delivered by justice Guy Cournoyer, joined by justice Alexandre Deschênes, and by chief justice Richard Bell who added concurring reasons. While the chief justice of the CMAC agreed with the conclusion and most of the reasons given by justice Cournoyer, he went on to express the view that the minister should nevertheless 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 such an end product is only but a poultice for the following reasons. Firstly, the director of military prosecutions is appointed for four years, but his entire prosecution service is under the general supervision of the Judge Advocate General (JAG) who is the head of the CAF legal chain of command. The same holds true for the director of Defence Counsel Services who, together with his staff, also falls under the supervision of the JAG. This would hardly make the director of military prosecutions “independent” from either the JAG or the minister for he will continue to be accountable to both who will be acting as their supervisors. 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 Queen’s Orders and Regulation, the JAG actually exercises command over every other “legal officer whose duty is the provision of legal services to the Canadian Forces.” Armed with such command authority, the JAG not only exercises full control over the management and administration of all its assigned human (civilian and military) resources, but he possesses plenipotentiary powers over the careers, postings, assignments, promotions and professional advancement opportunities of each one of these legal officers, be they serving in the prosecution or defense services or with and within the advisory parts of the JAG broad legal empire. Therefore, any perception that legal officers operating within the Directorate of Military Prosecutions or the Directorate Defence Counsel Services are independent and impartial is purely illusory and will not in any way cure what the CMAC has rightly declared as being unconstitutional. Such fiddling will only serve to extend or perpetuate the notion that in Canada, in contrast with most other advanced democracies, the military justice system by design or otherwise can continue to defy or circumvent our democratic notions of judicial independence and impartiality. Speaking of contrast, in the Canadian 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 which means that he cannot act individually and in isolation from any political and partisan consideration when dealing with the nature and scope of prosecutions of criminal matters in the penal military justice system. On the other hand, as is the case in Britain, the attorney general, as the chief law officer for the Crown, is not subject to such fetters when exercising his unique functions relating to the administration of justice. He or she stands separate and apart from partisan and executive responsibilities to the Cabinet as a whole. To be clear, as held in Law Society of Alberta v Krieger: 2002 SCC 65, 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 that, 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. Therefore, while on paper the Canadian military Prosecution and Defence Services appear to be independent, truth be told such appearance are most deceiving and unworthy of the necessary guarantees of independence and impartiality. Military 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 and assignments, appointments and promotions are all determined by the JAG chain of command to which they are totally subservient and obedient. Hence the solution proposed by the CMAC can and should only be considered as a temporary and ephemeral measure, that of depriving the minister of National Defence from his right to file an appeal to the CMAC. However, it leaves intact his greater and wider powers of providing direction to his immediate subordinate, i.e. the JAG who actually supervises the director of military prosecutions. In the result the serial command chain extending from the minister to the JAG and then the director of military prosecutions will remain intact. At present the current Canadian military justice structure remains a throwback to the days of the British or Colonial Empire. While a poultice is most welcome in the circumstances, as noted, it is at best a transitory treatment. Most obviously strong and pressing legislative corrective medicine is necessary to modernize and democratize the Canadian military justice system. Doing it in a piecemeal fashion, when pressed by urgent judicial decisions, results in a checkered system, which is growing in unnecessary and impermissible exceptions to the ordinary common law to the detriment of the very rights of our uniformed personnel and Canada’s reputation as an advanced democratic state. The time has come to review, if not restrict, the extraordinary reserved authority, powers, control and influence of the JAG over the superintendence of the military justice system since needed military law reforms, here and elsewhere, cannot realistically come from within the Defence establishment. This onerous task and responsibility are that of the legislator. And, it is a long way, too long, overdue. Gilles Létourneau is a former president of the Law Reform Commission of Canada, chairman of the Somalia Commission of Inquiry. He served on the Federal Court of Appeal and the Court Martial Appeal Court of Canada. Michel W. Drapeau is a law professor at the University of Ottawa. He is also a lawyer. He served in the Canadian Armed Forces for 34 year retiring in the rank of Colonel in 1993. They are the co-authors of a text on military law titled “Military Justice In Action” whose second edition was published by Carswell in 2015. news@hilltimes.com The Hill Times

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Parliamentary control of Armed Forces: a matter of national urgency and public interest

If a government is to truly effect change for all Canadians, then the private member’s bill could be a vehicle to empower voices from across the political spectrum.

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