Courts Martial

Page 1 of 46 Citation: R. v. Ex-Leading Seaman J.R.J. Lasalle,2005 CM 46 Docket: C200546 STANDING COURT MARTIAL CANADA BRITISH COLUMBIA ACOUSTIC DATA ANALYSIS CENTRE (PACIFIC)

Date: 21 December 2005 PRESIDING: LIEUTENANT-COLONEL M. DUTIL, M.J. HER MAJESTY THE QUEEN v. EX-LEADING SEAMAN J.R.J. LASALLE (Accused)

DECISION RESPECTING AN APPLICATION UNDER PARAGRAPH 11(d) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS (Rendered Orally)

OFFICIAL ENGLISH TRANSLATION INTRODUCTION [1] As I said, this is an application by the defence under paragraph 112.05 (5)(e) of the Queen's Regulations and Orders for the Canadian Forces on the ground that the Standing Court Martial is not an independent and impartial tribunal, contrary to section 11(d) of the Canadian Charter of Rights and Freedoms, because military judges presiding at these courts martial have insufficient guarantees of judicial independence. This application is one of three similar applications argued before this military judge at Standing Courts Martial. The other cases are the Standing Courts Martial concerning Corporate J.B. Joseph, which commenced in North Bay, Ontario, on 4 October 2005, and Corporal H.P. Nguyen, which commenced on 12 October 2005 in Sherbrooke, Quebec, the decision of the Standing Court Martial in Corporal Nguyen’s case having been given earlier this week, on 19 December 19, 2005. Apart from a few minor differences, the evidence and argument submitted in this case are the same as the evidence and argument in Corporal Nguyen’s case.

Page 2 of 46 [2] These applications raise, for the first time since the decisions in R. v. Lauzon [1998] C.M.A.J. No. 5 and R. v. Bergeron [1999] C.M.A.J. No. 3, the issue of judicial independence as it relates to courts martial under section 11(d) of the Charter since the enactment of the amendments to the National Defence Act and the regulations under that Act, in 1998. In the recent case Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges' Assn. v. Ontario Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), 2005 SCC 44, the Supreme Court reaffirmed at paragraph 4:

The basis for the principle of judicial independence can be found in both our common law and the Canadian Constitution; see Beauregard v. Canada, [1986] 2 S.C.R. 56, at pp. 70-73; Ell v. Alberta, [2003] 1 S.C.R. 857, 2003 SCC 35, at paras. 18-23. Judicial independence has been called “the lifeblood of constitutionalism in democratic societ-ies” (Beauregard, at p. 70), and has been said to exist “for the benefit of the judged, not the judges” (Ell, at para. 29). Independence is necessary because of the judiciary’s role as protector of the Constitution and the fundamental values embodied in it, including the rule of law, fundamental justice, equality and preservation of the democratic process; Beauregard, at p. 70.

This court strongly believes that these principles apply to courts martial in Canada. Despite their important duties, military judges presiding at courts martial have a more limited jurisdiction that of superior or provincial court judges. Military judges preside over penal and disciplinary matters dealing with persons subject to the Code of Service Discipline, military or civilian, in Canada or abroad. The court accepts that their role in upholding the Constitution is more limited than that their counterparts of superior and provincial courts. Therefore, it is likely that less stringent conditions are necessary to satisfy their judicial independence. However, the review of the court martial structure must not only take into account its historical and statutory context, but also acknowledge its overall relationship with other courts and tribunals in this country.

[3] The issue of judicial independence has been addressed in a number of important decisions since Valente v. The Queen [1985] 2 S.C.R. 673, in which Le Dain J. stated, at page 692:

Conceptions have changed over the years as to what ideally may be required in the way of substance and procedure for securing judicial independence ... . Opinions differ on what is necessary or desirable, or feasible. ....

[4] Nobody should take issue with the fact that judicial independence has evolved over time both in terms of its essential components, i.e. security of tenure, financial security and administrative independence, and with regard to its application to the broad spectrum of existing tribunals. Judicial independence has two dimensions, one individual, as it relates to the independence of a particular judge, and the other institu-tional, as it relates to the independence of the court the judge sits on. These dimensions

Page 3 of 46 depend upon objective standards that protect the judiciary's role; Valente, at page 687; Beauregard, at page 70; and Ell, at paragraph 28. The Supreme Court reiterated the content and the conditions of judicial independence in Ell v. Alberta [2003] 1 S.C.R., 857, at paragraphs 28 to 31, in which Major J. stated, for the court:

28 As stated, judicial independence encompasses both an individual and institu­tional dimension. The former relates to the independence of a particular judge, and the latter to the independence of the court to which the judge is a member. Each of these dimensions depends on objective conditions or guarantees that ensure the judiciary’s freedom from influence or any interference by others: see Valente, supra, at p. 685. The requisite guarantees are security of tenure, financial security and administrative independence: see Provincial Court Judges Reference, supra, at para. 115.

29 The principal question in this case is whether the Legislature’s removal of the respondents from office contravened their security of tenure. In assessing this issue, it must be considered that the conditions of independence are intended to protect the interests of the public. Judicial independence serves not as an end in itself, but as a means to safeguard our constitutional order and to maintain public confidence in the administration of justice: see Provincial Court Judges Reference, supra, at para. 9. The principle exists for the benefit of the judged, not the judges. If the conditions of independence are not “interpreted in light of the public interests they were intended to serve, there is a danger that their application will wind up hurting rather than enhancing public confidence in the courts”: see Mackin, supra, at para. 116, per Binnie J., in his dissent.

30 he manner in which the essential conditions of independence may be satisfied varies in accordance with the nature of the court or tribunal and the interests at stake. See Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, at para. 83, per Lamer C.J., and Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35, at para. 65, where the Court advocated a contextual approach to judicial independence:

... although it may be desirable, it is not reasonable to apply the most elaborate and rigorous conditions of judicial independence as constitutional require-ments, since s. 11(d) of the Canadian Charter may have to be applied to a variety of tribunals. These essential conditions should instead respect that diversity and be construed flexibly. Accordingly, there should be no uniform standard imposed or specific legislative formula dictated as supposedly prevailing. It will be sufficient if the essence of these conditions is respected. ...

[5] The concept of judicial independence is a pre-requisite to the judge's impartiality and it must be assessed objectively. This Court has to determine whether a reasonable person, who is informed of the relevant statutory provisions and of their historical background and the traditions surrounding them, and who has examined the matter realistically and practically, would conclude that this Standing Court Martial is independent. Moreover, the law requires that the emphasis be placed on the existence of the independent status of the court or tribunal and that this Standing Court Martial be seen to be independent. In Mackin v. New Brunswick (Minister of Finance); Rice v. New

Page 4 of 46 Brunswick, [2002]1 S.C.R. 405, Gonthier J., for the majority, added, at paragraphs 38 to 40:

38 ... Emphasis is placed on the existence of an independent status, because not only does a court have to be truly independent but it must also be reasonably seen to be independent. The independence of the judiciary is essential in maintaining the confi­dence of litigants in the administration of justice. Without this confidence, the Cana­dian judicial system cannot truly claim any legitimacy or command the respect and acceptance that are essential to it. In order for such confidence to be established and maintained, it is important that the independence of the court be openly “communi-cated” to the public. Consequently, in order for independence in the constitutional sense to exist, a reasonable and well-informed person should not only conclude that there is independence in fact, but also find that the conditions are present to provide a reasonable perception of independence. Only objective legal guarantees are capable of meeting this double requirement.

39 As was explained in Valente, supra, at p. 687, and in the Provincial Court Judges Reference, supra, at paras. 118 et seq., the independence of a particular court includes an individual dimension and an institutional dimension. The former relates especially to the person of the judge and involves his or her independence from any other entity, whereas the latter relates to the court to which the judge belongs and involves its independence from the executive and legislative branches of the govern-ment. The rules relating to these dimensions result from somewhat different impera-tives. Individual independence relates to the purely adjudicative functions of judges—the independence of a court is necessary for a given dispute to be decided in a manner that is just and equitable—whereas institutional independence relates more to the status of the judiciary as an institution that is the guardian of the Constitution and thereby reflects a profound commitment to the constitutional theory of the separation of powers. Nevertheless, in each of its dimensions, independence is designed to prevent any undue interference in the judicial decision-making process, which must be based solely on the requirements of law and justice.

40 Within these two dimensions will be found the three essential characteristics of judicial independence set out in Valente, supra, namely financial security, security of tenure and administrative independence. Together, these characteristics create the relationship of independence that must exist between a court and any other entity. Their maintenance also contributes to the general perception of the court’s independence. Moreover, these three characteristics must also be seen to be protected. In short, the constitutional protection of judicial independence requires both the existence in fact of these essential characteristics and the maintenance of the perception that they exist. Thus, each of them must be institutionalized through appropriate legal mechanisms.

That being said, the analysis must be done having regard to the nature of the Standing Court Martial and the interests in play, as the Supreme Court said at paragraph 30 of Ell, supra.

THE EVIDENCE [6] The evidence before this court consists of the following:

Page 5 of 46 (1) the facts and matters of which the Court has taken judicial notice under section 15 of the Military Rules of Evidence;

(2) the facts and matters of which the Court has taken judicial notice under section 16 of the Military Rules of Evidence;

(3) the exhibits filed with the court by consent of the parties and for the limited purposes stated by the parties; and

(4) the agreed statement of acts with before the court, Exhibit VD1-2.

THE POSITIONS OF THE PARTIES The Applicant [7] The applicant suggests that the provisions of the National Defence Act and of the QR&O do not provide the guarantees that are needed in order to ensure that this Standing Court Martial is an independent and impartial tribunal. More specifically, the applicant submits that a military judge, appointed under the current legislation, does not enjoy substantial and sufficient guarantees in the areas of security of tenure, financial security and institutional independence. The applicant begins by submitting that this Court should distinguish this case from the decisions in R. v. Généreux, [1992] 1 S.C.R. 259, R. v. Ingebritson, [1990] 5 C.M.A.C. 87, R. v. Edwards, [1995] C.M.A.C. No. 10, and R .v. Lauzon, [1998] C.M.A.C. No. 5, all of which dealt with the issue of judicial independence and impartiality of courts martial before the amendments made to the National Defence Act by the Act to amend the National Defence Act and to make consequential amendments to other Acts, 1998, chapter 35, which received Royal Assent on 10 December 1998 and came into force on 1 September 1999, because those decisions do not reflect the current state of the law in Canada as it relates to judicial independence. The applicant adds that the law in Canada has evolved, since the decision of the Supreme Court in Ell v. Alberta, [2003] 1 S.C.R. 857, to the point that even the new statutory and regulatory framework adopted when the amendments were made to the National Defence Act do not provide such substantial and significant guarantees. The applicant submits that conducting a trial in this context would violate the right of an accused to be tried by an independent and impartial tribunal, and that this violation could not be saved under section 1 of the Charter.

[8] The applicant therefore asks this Court to declare the following statutory and regulatory provisions, which relate to the procedure for appointing and removing

Page 6 of 46 military judges, renewing their terms, determining their remuneration and the rates and terms on which they are paid, be declared invalid and of no force or effect:

(1) subsection 165.21(2) of the National Defence Act and QR&O articles 101.13 and 101.14;

(2) subsection 165.21(3) of the National Defence Act and QR&O articles 101.15, 101.16, and 101.17;

(3) subsection 165.21(4) of the National Defence Act and QR&O article 101.175;

(4) paragraph 12(3)(a) of the National Defence Act and QR&O articles 204.22, 204.23, 204.24, 204.25, 204.26 and 204.27;

(5) QR&O article 19.75. Finally, in addition to the declaration of invalidity, the applicant is also asking that the Court grant a stay of the proceedings against the appellant, under section 24(1) of the Canadian Charter of Rights and Freedoms. Obviously, having regard to the length of my decision, before going any farther I would ask counsel, if they wish, that they may remove their headdress. I will now continue.

Security of Tenure Five-year Term [9] The applicant submits that military judges presiding at Standing Courts Martial do not enjoy sufficient guarantees with regard to both the individual and institutional aspects of their security of tenure. The applicant submits that a fixed term is not unconstitutional per se, as the Supreme Court stated in Généreux. The difficulty lies in the possibility that a former military judge might return to practice in the Canadian Forces, and thus become counsel for the executive or a member of the executive, notwithstanding the restrictions placed on the former judge by the rules of ethics adopted by the bar in a province which would apply to him or her. The applicant submits that military judges must enjoy security of tenure comparable to the judges of the superior courts of the provinces or of the provincial courts, that is, until the age of retirement. He relies primarily on the decision in Ell v. Alberta,[2003] 1 S.C.R. 857, and in particular on paragraphs 31-32:

31 The level of security of tenure that is constitutionally required will depend upon the specific context of the court or tribunal. Superior court judges are removable only by a joint address of the House of Commons and the Senate, as stipulated by s. 99

Page 7 of 46 of the Constitution Act, 1867. This level of tenure reflects the historical and modern position of superior courts as the core of Canada’s judicial structure and as the central guardians of the rule of law. Less rigorous conditions apply in the context of provincial courts, which are creatures of statute, but which nonetheless perform significant constitutional tasks. See Mackin, supra, at para. 52:

... the provincial judiciary has important constitutional functions to perform, especially in terms of what it may do: ensure respect for the primacy of the Constitution under s. 52 of the Constitution Act, 1982; provide relief for violations of the Charter under s. 24; apply ss. 2 and 7 to 14 of the Charter; ensure compliance with the division of powers within Confederation under ss. 91 and 92 of the Constitution Act, 1867; and render decisions concerning the rights of the aboriginal peoples protected by s. 35(1) of the Constitution Act, 1982.

While the respondents have important duties, their jurisdiction is considerably more limited than that of provincial court judges. Their role in upholding the Constitution is narrower in scope. As a result, less stringent conditions are necessary in order to satisfy their security of tenure.

32 The ultimate question in each case is whether a reasonable and informed person, viewing the relevant statutory provisions in their full historical context, would conclude that the court or tribunal is independent: Valente, supra, at p. 689. The perception of independence will be upheld if the essence of each condition of independence is met. The essence of security of tenure is that members of a tribunal be free from arbitrary or discretionary removal from office. See Valente, supra, at p. 698:

The essence of security of tenure for purposes of s. 11(d) is a tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner.

Removal [10] On the question of removal, the applicant submits to the Court that a question of this importance should be set out in the statute and not in regulations, and that the law should be as detailed as what is found in sections 64 and 65 of the Judges Act, R.S.C. 1985, c. J-1. In the applicant’s submission, the Inquiry Committee is not protected from interference by the executive, at least in appearance, and military judges enjoy less protection than the judges of other courts.

Relief from Performance of Military Duty [11] The security of tenure of military judges is also affected by the possibility that the Chief of Defence Staff and the Chief Military Judge, as an officer commanding a command, under article 4.091 (Powers and Jurisdiction of the Chief Military Judge), may theoretically relieve a military judge from performance of his or

Page 8 of 46 her military duty under article QR&O 19.75 (Relief from Performance of Military Duty). Retirement Age [12] The applicant’s final submission with respect to security of tenure or financial security is that regardless of what the retirement age is for military judges, it should be set out in the National Defence Act rather than in the QR&O because the issue could then no longer be subject to influence by the executive.

Renewal [13] The applicant further submits that if the Court concludes that a Standing Court Martial, presided over by a military judge appointed for a five-year term, meets the minimum standards of constitutionality, the same does not apply to the renewal process. First, all of the provisions relating to renewal should be set out in the Act alone. Second, he submits that the mere fact that a judge must seek renewal creates an appearance of dependency in the mind of a reasonable and well-informed person.

[14] He adds that the review committee established under section 101.15 (Review Committee) allows the executive to appoint a majority of the members. In addition, those people might be very close to the executive. The possibility of such a situation arising does not provide the necessary guarantees of the independence that is required of military judges, because the committee is not independent of the executive. The mere fact that the executive may appoint people who have no connection with the executive cannot, in the applicant’s submissions, make an unconstitutional regulatory provision valid. The applicant relies on, inter alia, Barreau de Montréal v. Québec (Procureure générale), R.J.Q. 2058, a judgment of the Quebec Court of Appeal, in which that Court disposed of the issue of the renewal procedure for members of the Tribunal administratif du Québec (T.A.Q.) under section 23 of the Charter of Human Rights and Freedoms, R.S.Q., c. C-12. It held that a right-minded and well-informed person who had thoroughly examined the situation would have a reasonable apprehension that the members of the TAQ, especially in the last year of their term, did do not have the independence of mind that is needed for forming entirely objective judgments. More specifically, such a person might reasonably believe that it would be more likely that the members’ decisions would be influenced by the presence on the committee responsible for recommending renewal of their appointment of representatives of the government and the chairperson of the TAQ, who sat on the committee ex officio. The applicant submits that the minimum standards of constitutionality relating to the composition of the renewal committee responsible for recommending reappointment of military judges cannot be lower than the minimum constitutional standard that applies to an administrative tribunal.

Page 9 of 46 [15] The applicant also questions the factors that must be considered by the review committee under QR&O article 101.17 (Recommendation by Renewal Committee). First, the applicant submits that the list of factors must be exhaustive. Second, he submits that the factors set out in article 101.17 are in general vague and imprecise or simply not relevant in the context of reappointment, except for subparagraph 101.17 (2)(a)(i). With respect to the factor relating to official language requirements, the applicant submits that it is relevant only at the time judges are appointed, and that this question is under the exclusive authority of the Chief Military Judge, and consideration of this factor by the committee would interfere in the administrative independence of the Chief Military Judge.

Financial Security [16] On the question of financial security, an essential characteristic of judicial independence, the applicant submits that the military judges compensation committee established by QR&O article 204.23 under section 165.22 of the National Defence Act does not enjoy sufficient independence, at least in appearance. He acknowledges that the terms used in the QR&O are not problematic in themselves, because the essentially reiterate the provisions of the Judges Act on this question, except that they are set out in the Act. Rather, it is the fact that the provisions are subject to the regulatory power of the executive that, in the applicant’s submission, creates an appearance of dependency. In comparison, the provisions that apply to federal judges in relation to the same matters are statutory, and are accordingly subject to the authority of the Parliament of Canada. The applicant submits that if we compare the procedures for making, amending, publishing and reviewing, regulations are more readily subject to executive ascendancy than a statute, and that judicial independence requires that these matters be governed by the primary legislation.

Institutional Independence [17] The provisions for the institutional independence of the Standing Court Martial and of military judges are also inadequate, in the applicant’s submission. His reasoning is based on the nature and substance of the instrument establishing the Office of the Chief Military Judge, Canadian Forces Organization Order (CFOO) 3763, made under the authority of the Chief of Defence Staff in February 2002, and the nature and substance of Order 2000007 dated February 7, 2002, by the Minister of National Defence, authorizing the establishment of the Office of the Chief Military Judge under subsection 17(1) of the National Defence Act. The applicant submits that the independence of military judges is threatened because the Act merely creates the positions of Court Martial Administrator, Military Judge and Chief Military Judge. There is no real judicial institution, that is, a court that is a real administrative entity, separate from the executive. The applicant submits that the fact that the Office of the

Page 10 of 46 Chief Military Judge is established under a ministerial order and a CFOO made by the Chief of Defence Staff may affect military judges’ security of tenure and institutional independence, because the only organization that military judges belong to is the Office of the Chief Military Judge, which is established by a representative of the executive, the Minister of National Defence, through the Chief of Defence Staff. He argues that the executive could change or nullify the way the Office of the Chief Military Judge is organized or functions simply by changing those instruments. An example of how the judges do not have institutional independence is the fact that the Chief of Defence Staff is the final authority in respect of a grievance filed by a judge. The applicant further argues that under QR&O chapter 21 (Summary Investigations and Boards of Inquiry), the Chief of Defence Staff or the Minister could use their powers to order a summary investigation or board of inquiry to have a military judge explain the reasons for a decision even though he or she is immune from prosecution. The fact that such situations have not occurred is not relevant, in the applicant’s submission, to the question of whether a reasonable person who is informed about these matters might objectively infer that the power given to the executive creates an apprehension of dependency. Accordingly, the applicant submits that a reasonably informed person who is familiar with the establishment and structure of courts martial under the National Defence Act may conclude that the office of military judge does not have the security of tenure, financial security or institutional independence that is necessary in order for a Standing Court Martial to be considered to be an independent and impartial tribunal within the meaning of paragraph 11(d) of the Charter. The applicant also very briefly argued, in the alternative, that the grievance procedure that applies to the Canadian Forces infringes judicial independence, and I will address that question later in this decision.