Chapter Three — Military Justice: The Year in Review

Introduction

This chapter examines key military justice developments that occurred over the reporting period in court martial jurisprudence. In previous annual reports, chapter 3 has included a summary of key cases as well as new legislative developments and other policy initiatives. In this year’s report, this chapter will focus on jurisprudential developments. Statutory amendments, independent and external reviews and policy initiatives will be discussed in detail in chapter 4.

Jurisprudence

Court Martial – Decisions of Note

Constitutionality of Sections 278.92 to 278.94 of the Criminal Code

During this reporting period the constitutionality of sections 278.92-278.93 and 278.94 of the Criminal Code of Canada (Criminal Code)^{Footnote 1} were challenged by the accused members in several cases. These sections, which were brought into force by Bill C-51 in 2018,^{Footnote 2} amended the Criminal Code provisions that governed the admissibility of a complainant’s prior sexual history evidence in sexual assault trials.^{Footnote 3}

The constitutional challenges brought at courts martial during the reporting period mirrored similar challenges brought in civilian criminal trial courts across the country. Dozens of conflicting decisions across several Provincial trial courts resulted in a patchwork of decisions, which either upheld, or invalidated the new provisions. While outside of the reporting period, the issue was ultimately resolved by the Supreme Court of Canada in the civilian case of R v J.J. on 30 June 2022, which upheld the constitutionality of sections 278.92 and 278.94 of the Criminal Code.^{Footnote 4}

R v Tait, 2021 CM 2009

In the court martial of R v Tait,^{Footnote 5} the accused challenged the constitutionality of sections 278.93 and 278.94 of the Criminal Code on the grounds that they infringed upon his section 7 Charter right to make full answer and defence and his section 11(d) Charter right to a fair trial.^{Footnote 6} The accused broadly asserted that the cumulative effect of the provisions created a significant burden to introduce evidence, obliged the accused to reveal his trial strategy prematurely, and undermined later cross-examination of the complainant, thereby violating his Charter rights.^{Footnote 7}

The Charter challenge was ultimately dismissed, with the Military Judge reasoning that the impugned statutory procedure “can be applied in a manner consistent with the principle against self-incrimination, the right to a fair trial, and the complainant’s right to privacy and equality.”^{Footnote 8} In reaching her decision, the Military Judge examined the scope of the amended procedure, clarified that the complainant is entitled to full disclosure of the application materials upon completion of the first application phase^{Footnote 9} and held that the ability of the complainant to cross-examine during the admissibility hearing ought to be limited by the trial judge to the specific evidence to minimize the risk of defence disclosure by the accused, while allowing the victim to defend their privacy interest.^{Footnote 10} In addition, the Military Judge opined that trial judges should be afforded the discretion to determine the moment when a notice of application is provided to the complainant so as to balance and preserve the participatory rights of the complainant and the trial rights of the accused.^{Footnote 11}

In her decision, the Military Judge noted that trial courts across the country have been divided on whether the amended provisions passed constitutional scrutiny, and that there were no appeal court decisions on the matter. Within the military justice system, the decision in R v Tait upheld the constitutionality of sections 278.93 and 278.94 of the Criminal Code. The reasoning of the court was followed in subsequent court martial cases of R v Stewart^{Footnote 12} and R v Kohlsmith and Zapata-Vales^{Footnote 13}.

Administering Noxious Substances

R v Cogswell, 2021 CM 2017^{Footnote 14}

Although the circumstances at the heart of the decision in Cogswell occurred before the legalization of recreational cannabis in Canada, the case remains noteworthy for the Military Judge’s examination of the risks associated with the consumption of cannabis or any other potentially noxious substance during military exercises and operations. Moreover, the decision is relevant to the judicial assessment of circumstantial evidence.

On 21 July 2018, W Battery of the Royal Canadian Artillery School was scheduled to participate in live fire training during Exercise Common Gunner at Canadian Forces Base Gagetown, New Brunswick. Bombardier Cogswell, who was assigned to the unit’s mobile canteen, distributed cupcakes to members of two separately located gun detachments. Shortly thereafter, eight soldiers reported various symptoms consistent with the ingestion of cannabis some while operating heavy vehicles and moving artillery pieces. As some of the soldiers began to suspect cannabis intoxication, the Commandant of the Royal Canadian Artillery School requested a military police investigation into the matter. Urine samples were voluntarily submitted by five of the soldiers involved, all of which were positive for marijuana metabolites. Likewise, one of the cupcake wrappers was obtained and testing revealed the presence of tetrahydrocannabinol. The accused was subsequently charged with one count of disgraceful conduct under section 93 of the National Defence Act; eight counts under section 130 of the National Defence Act, namely, administering a noxious thing contrary to section 245(1)(b) of the Criminal Code; and nine counts of acting to the prejudice of good order and discipline under section 129 of the National Defence Act, as alternates to the other charges.

The evidence presented at trial to prove the element of “administering” was circumstantial in nature, while direct evidence was used to prove the actual distribution of the alleged noxious substance by the accused. The salient issue was that no one witnessed the accused put cannabis in the cupcakes.^{Footnote 15} In cases involving circumstantial evidence, the trier of fact cannot convict the accused unless the possible inferences from the circumstantial evidence leave no reasonable doubt about the guilt of the accused.^{Footnote 16}

The Military Judge was convinced beyond a reasonable doubt that the accused added the cannabis to the cupcakes. In reaching her decision, she assessed the common factual elements of the charges in sequence, beginning by first establishing that the victims had consumed cannabis that day. This conclusion was based on the combined effect of the urine tests, unrefuted evidence that two victims had never consumed cannabis prior to testing positive, and the unlikeliness that the victims would have otherwise voluntarily submitted themselves to drug testing given the legal repercussions that could have followed a positive result for any other prohibited drug.^{Footnote 17} Next, the Military Judge examined whether the cupcakes were the source of the cannabis. The consumption of the cupcakes was determined to be the only plausible source of intoxication on account of them being the only common denominator between the soldiers at the two locations visited by the mobile canteen.^{Footnote 18} Finally, the Military Judge considered whether, having baked the cupcakes, the accused put cannabis into them. While the defence asserted that other soldiers could have used droppers to add cannabis to the cupcakes before they were consumed, the Military Judge rejected this assertion given the remoteness of the possibility that someone with a dropper intercepted and contaminated every one of the cupcakes at two different locations.^{Footnote 19} In addition, considering the motives of the accused, her knowledge of and access to cannabis products, and her behaviour as she gave out the cupcakes, the Military Judge was convinced beyond a reasonable doubt that the accused added the cannabis to the cupcakes.^{Footnote 20}

Bombardier Cogswell was found guilty and sentenced to imprisonment for a period of 30 days, dismissal from Her Majesty’s service and a reduction in rank to gunner.^{Footnote 21} Gunner Cogswell appealed, and of note, while outside of the reporting period, the Court Martial Appeal Court of Canada on 31 May 2022 dismissed the appeal.^{Footnote 22}

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Court Martial Appeal Court of Canada Decisions

Historical background to Section 11(d) applications and associated appeals

During the previous reporting period, decisions challenging the independence and impartiality of military judges dominated the jurisprudence at courts martial.^{Footnote 23} Charter applications challenging the independence of military judges, by accused members can be found in sixteen cases. All the cases shared a common central issue whether judicial independence required that military judges not be subject to the Code of Service Discipline in order to comply with section 11(d) of the Charter.^{Footnote 24}

The Director of Military Prosecutions, appealed the decisions in R v Edwards, R v Crépeau, R v Fontaine, R v Iredale (Edwards et al.), and R v Proulx, and R v Cloutier to the Court Martial Appeal Court of Canada that was heard on 29 January 2021.^{Footnote 25}

The appeals in R v Proulx and R v Cloutier (R v Proulx et al.) were heard jointly on 11 March 2021. These appeals focused on the issue of whether the position of the Office of the Chief Military Judge within the military hierarchy violates an accused’s section 11(d) Charter rights.

The decision of the Court Martial Appeal Court in Edwards et al. was released during this reporting period on 11 June 2021 and its reasoning formed the basis for the subsequent decision of the Court Martial Appeal Court in R v Proulx et al. on 17 June 2021.

The cases of R v Christmas^{Footnote 26} and R v Brown^{Footnote 27} were also appealed to the Court Martial Appeal Court of Canada with decisions issued on 13 January 2022 and 8 February 2022 respectively.  In each of the cases heard by the Court Martial Appeal Court of Canada on the 11 (d) issue, the Court allowed the appeals, overturned the findings of the courts martial, and confirmed that military judges were indeed subject to the Code of Service Discipline.

Accordingly, this reporting period will begin with a discussion of R v Edwards et al.

R v Edwards et al, 2021 CMAC 2

In R v Edwards et al, decided on 11 June 2021 the issue on appeal was whether the status of military judges as officers subject to the Code of Service Discipline and their status within a military chain of command, leaves them vulnerable to interference, real or perceived, so as to violate the section 11(d) Charter rights of an accused before a court martial.^{Footnote 28} In its reasons for judgment, the Court Martial Appeal Court of Canada expressed this overarching question in the form of two key issues for analysis: whether a specific Chief of the Defence Staff Order (CDS Order) dated 2 October 2019 violated section 11(d) of the Charter; and, whether certain sections of the National Defence Act that lawfully support the creation of military orders also violate section 11(d) of the Charter in relation to military judges.

In a unanimous decision, the Court held that the specific CDS Order at issue did not violate section 11(d) of the Charter. The Court noted that a complete separation between judicial and executive functions is not practicable in Canadian law, and need not be absolute so as to preclude the arrangement found in the military justice system where a judicial official is both a judge and an officer in the Canadian Armed Forces.^{Footnote 29} In reaching its decision, the Court drew attention to Supreme Court of Canada jurisprudence on the subject of judicial independence and impartiality, which does not require absolute independence nor demand adherence to an ideal standard but instead requires a judicial assessment of institutional independence and impartiality as a contextual exercise.^{Footnote 30} A proper Charter assessment demands sensitivity to the role and function of courts martial, the accepted constitutional justifications for the military justice system, and consideration of other factors that bear on the impartiality of military judges.^{Footnote 31} The Court ruled that the purpose of the military justice system is to promote the discipline, efficiency, and morale of the Canadian Armed Forces. This requires an operationally ready and portable military justice system, which includes compliance with the Code of Service Discipline by military judges.

After deciding that military judges can be both judicial officials and officers subject to the Code of Service Discipline, the Court found no merit to the argument that sections 12, 18, and 60 of the National Defence Act (or any other provision that grants organizational authority) violated section 11(d) Charter on this topic. Equally, the court found that there was no merit to this issue when viewed through the correct lens of Supreme Court of Canada jurisprudence that has repeatedly affirmed the constitutionality of military members being tried by military officers.^{Footnote 32}

R v Proulx et al., 2021 CMAC 3^{Footnote 33}

The importance of the Edwards et al decision was reinforced by the release of the Court Martial Appeal Court of Canada’s decision in R v Proulx et al on 17 June 2021. Using the same rationale set out in Edwards et al,^{Footnote 34} the Court dismissed all of the grounds of appeal. The Court also drew attention to existing judicial controls granted to the Chief Military Judge over the assignment of judges and administration of the court and echoed the earlier court martial decision in R v Proulx noting that the military justice system respects the core requirements of institutional independence set out in governing Supreme Court of Canada jurisprudence.^{Footnote 35}

R v Christmas, 2022 CMAC 1

On 13 January 2022, the Court, for the same reasons as set out in Edwards et al and Proulx et al, allowed the appeal, lifted the stay and ordered the trial to proceed.

R v Brown, 2022 CMAC 2

On 8 February 2022, the Court, for the same reasons as set out in Edwards et al and Proulx et al, allowed the appeal, lifted the stay and ordered the trial to proceed.

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11(d) appellate decisions – Supreme Court of Canada Appeal

Prior to the end of the reporting period, leave to appeal to the Supreme Court of Canada was sought in all of the Court Martial Appeal Court of Canada’s decisions connected to judicial independence under section 11(d) of the Charter.^{Footnote 36} Of note, in an announcement issued after the reporting period in February of 2023, the Supreme Court of Canada granted leave to appeal all of the cases.

R v Champion, 2021 CMAC 4

The decision in R v Champion refined the interpretation of the imposition of release conditions in the absence of a charge, and provided clarity for the military justice system on principles governing pre-charge custody in military law.^{Footnote 37} In this case, the Court Martial Appeal Court of Canada affirmed that military justice system participants can impose release conditions upon a detained member even when a charge has yet to be laid using principles of restraint, necessity and reasonableness.^{Footnote 38}

Sailor Third Class Champion (Sailor Champion) was arrested on 13 November 2020 for alleged drunkenness. He was released by a Custody Review Officer on conditions that included confinement to barracks and sobriety. Sailor Champion was arrested two days later for allegedly breaching these conditions. Thereafter, he remained in the custody of military police until 17 November 2020, at which time he was brought before a Military Judge for a custody review hearing. At the time of the hearing, Sailor Champion had not been charged with any offence.

At the hearing, it was argued on behalf of the arrested member that pursuant to the 2001 Court Martial Appeal Court decision in R v Larocque,^{Footnote 39} an arrested person attending a custody review hearing shall be released without conditions if they have not been charged. The Military Judge disagreed with this interpretation of military law and released the accused with conditions. Thereafter, the member was charged on 23 November 2020. In the days that followed, the accused’s Commanding Officer decided not to proceed with the charges.^{Footnote 40}

The Court took the opportunity to further examine the statutory obligations incumbent on military judges at custody review hearings. The Court observed that military judges and military justice system participants must be guided by principles of fundamental justice in avoiding undue delay and by only imposing conditions that show restraint, are clearly articulated, necessary and reasonable in the circumstances. It was found that the conditions imposed and the delay in laying charges in this case did not violate principles of fundamental justice.^{Footnote 41}

Furthermore, the Court observed that the absence of statutory criteria for military judges in the National Defence Act (regarding the imposition of conditions at custody review hearings where no charges have been laid) affords military judges the flexibility to respond to the unique needs of military justice and “to do so with the aid of their own military experience and knowledge.”^{Footnote 42}

Finally, the Court reasoned that even if the imposition of release conditions could have been construed as a deprivation of liberty under section 7 of the Charter in a manner not in accordance with the principles of fundamental justice, the decision of the Military Judge or other military justice participant could still be saved by section 1 of the Charter. The ability to detain a member without charges for up to 72 hours before appearing before a military judge constitutes a reasonable limit prescribed by law and is demonstrably justified in a free and democratic society.^{Footnote 43}

R v Lévesque, 2021 CMAC 5

The principal issue on appeal before the Court Martial Appeal Court of Canada was the place where a custodial sentence was ordered to be served. Consequently, the Court clarified the propriety of an offender’s imprisonment in a service prison after their release from the Canadian Armed Forces, as well as the procedure for determining where the custodial sentence is served.^{Footnote 44} In this case, the offences took place while the appellant was a service member. However, he was tried and sentenced to three months in prison, for which he was ordered to serve the sentence in a service prison after his release from the Canadian Armed Forces.^{Footnote 45} The appeal was granted and an order for the appellant to serve his sentence in civilian prison was issued.

Article 114.06 of the Queen’s Regulations and Orders for the Canadian Forces identified that sentences of imprisonment for less than two years are to be served in a service prison if it is established that the exigencies of the service so require it. Accordingly, serving a term of imprisonment in a civilian prison is the rule, and a service prison is the exception.^{Footnote 46} It is within this regulatory framework that the appellant argued the exigencies of service could not be interpreted to require offenders who are no longer in the Canadian Armed Forces to serve their sentence in a service prison.

The Court did not endorse such a narrow interpretation, holding instead that various circumstances could arise in which the exigencies of service may require incarceration in a service prison even if the offender is no longer a member of the Canadian Armed Forces.^{Footnote 47} The Court also clarified that once a sentence of imprisonment is imposed, the parties at sentencing hearings should be permitted to make additional submissions regarding the place of incarceration after a sentence of imprisonment has been imposed. In the case of the appellant, it was held that he should have had an opportunity to make submissions at his sentencing hearing regarding the negative impact that service imprisonment would have had on his ongoing treatment for pre-existing medical conditions.^{Footnote 48}

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Supreme Court of Canada

R v McGregor, 2020 CMAC 8

This case was first reported on in the 2020-2021 Annual Report.^{Footnote 49} Corporal McGregor was stationed in Washington, D.C. and resided in Alexandria, Virginia, when he became the subject of a criminal investigation by the Canadian Forces National Investigation Service due to an audio recording device discovered in another member's residence. The Canadian Forces National Investigation Service sought assistance from the Alexandria Police Force to execute a search warrant for Corporal McGregor’s residence and seize any electronic devices found therein.

As a result of the search, Corporal McGregor was arrested and charged. At court martial, Corporal McGregor brought a motion pursuant to section 24(2) of the Charter to exclude the evidence obtained from the search and seizure. The Military Judge dismissed the motion and held that the Charter, as Canadian law, did not apply extraterritorially.^{Footnote 50} He appealed the decision to the Court Martial Appeal Court of Canada.

The heart of the issue before the Court Martial Appeal Court of Canada was the extraterritorial applicability of the Charter. Corporal McGregor contended that the Charter applied to a search of real property and personal property within the territorial sovereignty of the United States. The Court’s decision was predicated on the analytical framework laid out by the Supreme Court of Canada in R v Hape.^{Footnote 51} Specifically, the jurisprudence outlines that search warrants, as a quintessential exercise of a state’s sovereign authority, are governed by the principles of sovereign equality, non-intervention, and comity. The Court opined extensively on the problematic nature of the Charter applying to the actions of foreign judicial or police authorities, effectively obliging them to create ad hoc Charter compliant procedures during a co-operative law enforcement investigation. The principles outlined in R v Hape, preclude the application of Canadian law and standards to searches and seizures conducted in the territory of another state.^{Footnote 52} The Court Martial Appeal Court of Canada unanimously dismissed the appeal.

Corporal McGregor filed a notice of application for leave to the Supreme Court of Canada on 25 January 2021, with leave to appeal granted on 14 October 2021.^{Footnote 53} Outside of the reporting period the Supreme Court of Canada heard oral arguments on 19 May 2022, and subsequently unanimously dismissed the appeal. The decision of the Supreme Court of Canada will be discussed in greater detail in the 2022-2023 annual report.

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