Focus On

Military appeal court head looks to modernize and improve access

Thursday, June 09, 2016 @ 8:00 PM | By Cristin Schmitz

The Court Martial Appeal Court of Canada is so low profile at times that even military justice experts don’t know all it does.

For example few lawyers know that the CMAC, staffed on an ad hoc basis by about 65 trial and appellate judges on loan from the superior courts across Canada, is the only court that supervises the professional conduct of the same four military judges whose criminal law decisions it reviews on appeal (other federal judges are disciplined by the Canadian Judicial Council).

The CMAC has never had to sanction a military judge so far as is known. But this year, for the first time in memory, it did have to decide a complaint — lodged by the chief of staff of the Judge Advocate General or JAG— against Chief Military Judge Mario Dutil, alleging that the chief judge might have infringed a military administrative order on personal relationships and fraternization.

For the first time in memory the CMAC also had to strike a “Military Judges Inquiry Committee” which recently dismissed that sensitive complaint with a terse four-line explanation on its website (see other page 1 story).

Setting up a new standing committee on judicial conduct — and deciding whether to publicly disclose the complaint’s existence and outcome on the CMAC’s website since the National Defence Act (NDA) is silent on that — were among the trickier tasks tackled by the CMAC’s affable new chief justice in his first year in office.

In the interests of transparency, “we just made a decision, in the absence of any legislative or regulatory provision, to [publish] it,” rather than “file it away,” explains Chief Justice Richard Bell, a former New Brunswick litigator and Court of Appeal judge who was appointed to lead the court in February 2015 by then prime minister Steven Harper. “Fortunately, and this speaks to the calibre, I’m sure, of the judges who are appointed to the military courts, I believe that we were the first panel that had to be constituted in memory, as far as I know,” observes the ex-RCMP constable, whom Harper cross-appointed to sit as a trial judge in the Ottawa-based Federal Court.

The CMAC has its share of legal hot potatoes. The intermediate appellate court composed exclusively of civilian judges, with criminal and constitutional jurisdiction, presides over a military justice system that is under sustained constitutional attack these days for its purported failure to give military members charged with crimes Charter protections equivalent to those afforded civilian accused.

The litigation has risen to the Supreme Court of Canada, which sits at the pinnacle of the military justice system, and currently has under consideration cases about whether prosecutorial independence is a principle of fundamental justice (if so, it may have implications for the civilian justice system), and challenging the constitutionality of the statutory powers of the minister of National Defence to appeal acquittals, stays and sentences to the CMAC, and to appeal CMAC decisions to the top court: Cawthorne, Gagnon and Thibeault.

“Those challenges have to work their way through the system and the National Defence Act must be Charter compliant, and it must be interpreted as being Charter compliant,” says Chief Justice Bell, a member of the three-judge panel in R. v. Gagnon 2015 CMAC 2 that struck down the Defence minister’s CMAC appeal power as a violation of s. 7 of the Charter.

“However to say…the military justice system is going to be exactly like the civilian justice system, that is highly unlikely that that can happen, given the jurisprudential history of military justice, the British common law system and given the provisions of the Constitution itself,” he observes. The Constitution “specifically makes reference to military law, so there is always going to be a military justice system in Canada, unless the Constitution gets amended. And it’s our job to interpret the military law, and military justice system, consistent with other provisions in the Charter, and the Criminal Code and other legislation.”

Military law lawyer Michel Drapeau, a retired Canadian Armed Forces colonel and a critic of what he sees as the lack of procedural and substantive protections in the military justice system, including the absence of jury trials, hybrid offences, preliminary inquiries and suspended sentences, pays tribute to the CMAC as a major catalyst for military justice system reform.

“At present, the current Canadian military justice structure remains a throwback to the days of the British or colonial empire,” Drapeau contends. “Over the past 15 or 20 years, the only progress that has been made to modernize, and to bring the Canadian military law in line with the evolving common law, particularly the criminal common law, has been done because of the Court Martial Appeal Court. If it had not, then as much as the Canadian military law is…much, much behind the times, it would be even worse.”

Drapeau credits the CMAC, for example, for triggering changes to eliminate part-time status for military judges, and to enable the defence (not the prosecutor) to choose whether an accused is to be tried by a judge alone or by a panel of five people in a general court martial.

“To me it hasn’t been a court of last resort — it’s been a court of first resort where they have actually made law, and constantly made law,” remarks Drapeau. “The only way the law has advanced has been not from within the Defence Department, and the JAG in particular…but it was done through the pen of the various benches.”

Chief Justice Bell notes, “No one wants inferior justice, and our purpose as judges, and as people who are concerned about ensuring that justice is delivered, is that no one receives inferior justice.”

At the same time, based on his observations as a member of the trial and appellate courts of New Brunswick, the military justice system performs better in some ways than civilian criminal courts do. “I see no delays compared to the delays I see in the civilian system,” the chief justice notes. “So far I have seen no one under-represented…I have highly competent counsel before me, almost without exception, who are well-resourced, and who represent their clients well. There is not a chief justice of a court of appeal in any province that can make that statement to you.”

The chief justice says he is intent on modernizing the CMAC and making its work more accessible to the public. When he arrived, its decisions had not been published in seven years. “Our decisions weren’t online, and they weren’t edited, and there weren’t summaries of them, and that’s being done as we speak.”

The website is also being overhauled, with a view to completion by the end of the year. “It doesn’t contain all the information we need it to contain,” he explains. “It doesn’t contain a clear roadmap to things like [Military Judges] Inquiry Committee reports, and access to relevant jurisprudence.”

As well a committee chaired by Federal Court Justice Patrick Gleeson (a designated judge of the CMAC) is working assiduously to update the court’s creaky rules. The court is also looking at whether oral hearings are really necessary for some motions.

Chief Justice Bell says the CMAC’s work is up-to-date and not backlogged, and its administration is comparatively well-resourced. “The difference is night and day between the resources made available by the federal government versus the resources made available at the provincial level,” he notes. “So when you ask me to identify a challenge, or a problem, or something that is difficult for me, I have to tell you that it is nothingness compared to what people live with in the provincial jurisdictions.”

Noting that the legal matters confronting the CMAC are Charter-heavy and very interesting, he concludes, “you’re talking to a chap who thinks he has the best job in the world…I get to sit on an intermediate Court of Appeal…with colleagues who are very well-trained, and who are very knowledgeable about the law. And, when I’m not doing that, I get to sit as a trial judge [in Federal Court] which, as any judge will tell you, is where a lot of the fun is.”