Cour martiale

 

COURT MARTIAL

 

Citation: R. v. Dondaneau, 2023 CM 2007

 

Date: 20230301

Docket: 202227

 

Standing Court Martial

 

Canadian Forces Base Esquimalt

Victoria, British Columbia, Canada

 

Between:

 

Master Corporal S.L. Dondaneau, Applicant

 

- and -

 

His Majesty the King, Respondent

 

 

Before: Commander S.M. Sukstorf, M.J.

 

DECISION ON A DEFENCE APPLICATION FOR AN ADJOURNMENT

 

(Orally)

 

[1]               The six charges before the Court arise from allegations that Master Corporal Dondaneau submitted documentation to receive post living differential (PLD), financial assistance and other expenses to which she was not entitled. The first and fifth charges are alternates to each other.

 

[2]               The first charge alleges an offence punishable under section 130 of the National Defence Act (NDA), that is to say, fraud contrary to section 380 of the Criminal Code. Alternatively, the fifth charge alleges a general contravention under paragraph 117 (f) of the NDA for an act of a fraudulent nature not particularly specified in sections 73 to 128 of the NDA.

 

[3]               The second, third and fourth charges allege offences contrary to paragraph 125(a) of the NDA for willfully making a false entry in a document signed by her that was required for official purposes. The sixth charge alleges an offence contrary to section 129 of the NDA for conduct to the prejudice of good order and discipline.

[4]               Prior to the hearing of this application, the applicant made an application seeking a declaration pursuant to subsection 52(1) of the Constitution Act 1982 that sections 12, 17, 18 and 60 of the NDA violate the constitutional principles of judicial independence protected by paragraph 11(d) of the Canadian Charter of Rights and Freedoms (Charter) and are thus of no force or effect and sought, as a remedy, a stay of proceedings.

 

[5]               The paragraph 11(d) Charter application was made to preserve the applicant’s appeal rights enabling her to benefit from any second order effect flowing from the Supreme Court of Canada (SCC) decisions with respect to nine different courts martial cases before it, being, R. v. Edwards, 2020 CM 3006, R. c. Crépeau, 2020 CM 3007, R. c. Fontaine, 2020 CM 3008, R. v. Iredale, 2020 CM 4009, R. v. Brown, 2021 CM 4003,  R. v. Christmas, 2020 CM 3009, R. v. Proulx, 2020 CM 4012, R. v. Cloutier, 2020 CM 4013, R. c. Thibault, 2021 CM 5016, all of which were granted leave to appeal on 2 February 2023.

 

[6]               Since this Court is bound by the current Court Martial Appeal Court (CMAC) unanimous decisions on the issue of judicial independence, her application was dismissed.

 

[7]               Now, she seeks an adjournment of her case until the SCC renders its final decisions in the nine cases regarding the issue of the judicial independence of the military judiciary.

 

Applicant’s position

 

[8]               The applicant argues that continuing the proceedings of this court martial prior to the final decision of the SCC in the above cases would violate her constitutional rights as follows:

 

(a)               right to be tried by an independent and impartial tribunal (paragraph 11(d) of the Charter);

 

(a)               right to a fair trial (section 7 and paragraph 11(d) of the Charter); and

 

(b)               right to liberty (section 7 of the Charter).

 

[9]               It is her position that the application for leave to appeal to the SCC has merit as evidenced in the SCC’s decision to grant leave to appeal.

 

[10]           She argued that the decision by the SCC to grant leave to appeal should not be taken lightly as there was no automatic right of appeal in any of the cases. Counsel for the applicant submitted that based on the statistics publicly available on the SCC website, the SCC grants leave in only about eight per cent of cases requesting such leave. The applicant’s counsel argued that statistically, it takes about eight months for a hearing and then another four months before a decision is rendered.

 

[11]           Further, counsel for the applicant argued that the core issue to be heard by the SCC relates to the very foundation of the court martial proceedings as it affects the jurisdiction of the court. A finding that the military judge is not independent may require the applicant to be tried a second time by a duly constituted court and given everything she has going on personally in her life, this would be too much for her. The applicant testified that she is a single parent, solely raising two adolescents. She recently had one hip surgery and is awaiting another major surgery expected imminently.

 

[12]           Further, given the nature of the charges and allegations that she defrauded the government by as much as $80,000, the applicant testified that she has been advised that her liberty is at stake. In addition, under section 139 of the NDA, she is exposed to the punishment of dismissal, which is a punishment that is not easily reversed.

 

Respondent’s position

 

[13]           The prosecution, who is the respondent, opposes any adjournment. He indicated that the application states and the applicant testified that the only reason she is seeking an adjournment is to await a decision by the SCC on the issue of judicial independence. Consequently, he asked the Court to assess only those factors that relate to the substance of the applicant’s request.

 

[14]           He asked the Court to reject the defence’s invitation to speculate on the merit of the appeal before the SCC as there may be many reasons why the SCC has agreed to hear the cases.

 

[15]           The respondent reminded the court that we have a series of unanimous rulings from the CMAC that military judges meet the minimum constitutional norms of impartiality and independence as required by paragraph 11(d) of the Charter. This is not an issue where there is a split or a dissent at the CMAC level.

 

[16]           Further, the respondent argued that mechanisms other than an adjournment are available to the applicant to balance the societal interest and the interest of the administration of justice without prejudicing her Charter protected rights.

 

Analysis

 

[17]           The consideration of a request for an adjournment at courts martial requires the exercise of judicial discretion. In conducting its assessment, the Court must consider all the circumstances relevant to the case at hand, to determine what is in the best interests of the administration of military justice. The exercise of discretion must be principled.

 

[18]           As Watt, J.A. so aptly described at paragraph 57 of R. v. Ke, 2021 ONCA 179, “The interests of justice are a joint venture, not a sole proprietorship. They are not for the sole use of one party to the exclusion of the other.” It requires that I consider all the relevant factors and balance the competing interests at play.

 

[19]           In assessing the request before the Court, I began by analysing a broad range of factors and relevant considerations at play and then proceeded to assess the specific merits of the application before the Court with respect to the exact issues currently before the SCC.  In my assessment, I first considered the following:

 

(a)               gravity of the charges. The charges against the accused are serious and arise from an allegation that she defrauded the government of money to which she was not entitled. Considering the seriousness of the allegations, if she is found guilty, the applicant testified that she understands that she will be exposed to a custodial sentence;

 

(b)               public interest in the orderly and expeditious administration of military justice. The SCC recently clarified that the military justice system is designed to maintain discipline, efficiency and morale in the military. The charge sheet relies upon incidents that date back ten years with the most recent occurrences unfolding three years ago;

 

It is in the interests of all, including the interests of the administration of justice, that an outcome regarding the charges against the applicant be done expeditiously.

 

The distinct purpose of the military justice system is “to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military”. In R. v. Généreux, [1992] 1 S.C.R. 259 Lamer C.J. wrote that “the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily . . .   ”

 

As the CMAC found at paragraph 10 in both the cases of R. v. Brown, 2021 CMAC 8 and R v. Christmas, 2021 CMAC 7 “[a]n application for leave to appeal to the Supreme Court of Canada is not intended to freeze the wheels of justice.”

 

Less than three years ago, the majority of the SCC reiterated in R. v. Stillman, 2019 SCC 4 that “responding swiftly to misconduct within the military [enhances] discipline, efficiency, and morale in the military.” Accordingly, section 162 of the NDA provides that “Charges laid under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit”. (See also Report of the Third Independent Review Authority to the Minister of National Defence, April 30, 2021 (Fish Report) at paragraphs 430 and 431)

 

(c)               would granting an adjournment inordinately delay the trial? In short, the adjournment request could extend the commencement of this case to over a year or longer. The applicant testified that she intends to continue serving in the Canadian Armed Forces (CAF) and will be available at a future date to respond to the charges before the Court. She is currently managing a range of health and personal issues that will keep her very occupied in the coming months. Although I do not understand her request for an adjournment to be based strictly on her personal and health considerations, the evidence before the Court is that given all the stress she is currently managing, she will personally benefit from an adjournment. In other words, there is no evidence before the Court that an adjournment would be detrimental to her personally;

 

(d)               paragraph 11(b) Charter rights on delay. Counsel for the applicant suggested that the delay brought about by the requested adjournment would be considered neutral under exceptional circumstances and would not count against her paragraph 11(b) Charter right to be tried within a reasonable time; and

 

(e)               how will this affect the prosecution’s perspective? The prosecution opposes the adjournment arguing that an adjournment in this case to await a decision from the SCC on judicial independence could have the second order effect of grinding the military justice system to a halt. He argued that based on the facts, this case can be differentiated from the other cases where adjournments were granted because those cases involved matters where there had been a break in stare decisis. In this case, the CMAC was unanimous in its findings in all nine cases and its decisions are binding on this court.

 

The prosecution addressed the potential prejudice that the accused might face if found guilty by explaining that sentencing may not automatically follow upon finding. He argued that there is normally an adjournment to permit the parties to prepare. Further, he explained that even if sentencing was to proceed, the accused would likely have a strong argument for leave pending appeal. From his submissions, I understand that it is the prosecution’s position that with the time and the options available, the accused would likely not be incarcerated before the SCC would have ruled on the appeals.

 

Merit of the application

 

[20]           Since the substance of the applicant’s request is predicated on presumed benefit flowing directly to her from the decision to be rendered by the SCC, it is appropriate for the Court to closely examine her situation in the context of the specific issues that are before the SCC.

 

[21]           In doing so, it is important to clarify the exact landscape that currently surrounds the applicant’s court martial with respect to the issue of judicial independence and assess whether her current circumstances are directly affected by any of those factors that were present in Edwards et al. and with the subsequent decisions that followed.

 

[22]           In assessing whether the issues that will be decided by the SCC will have a direct impact on her court martial, I began firstly, with a summary of the issues of independence as they first arose and which form the basis of the arguments before the SCC.

 

History of the cases before the SCC on judicial independence of the military judiciary

 

[23]           During the late summer and early fall of 2020, multiple accused persons raised challenges to the judicial independence of military judges presiding over courts martial. The challenges focussed on a Chief of the Defence Staff (CDS) Order issued on 18 October 2019 that delegated power to the Deputy Vice Chief of the Defence Staff (DVCDS) to lay charges against a military judge if he or she was alleged to have committed a service offence.

 

[24]           In the first round of cases challenging judicial independence, in R. v. Pett, 2020 CM 4002 and R. v. D’Amico, 2020 CM 2002, the military judges were unequivocal in denouncing the unacceptable overbreadth of the CDS Order and called upon the executive to correct it.

 

[25]           On 10 July 2020, six months after the first declaration was made in Pett, the CDS Order still had not been rescinded. In R. v. Bourque, 2020 CM 2008, defence counsel raised another application challenging the independence of the military judiciary. After reminding counsel of their responsibility to give effect to the Court’s direction in Pett and D’Amico, the Court adjourned the proceedings to provide counsel time to ensure that the CDS was aware of the decisions and to provide him the opportunity to revoke the CDS Order. As the paragraph 11(d) Charter right belongs to an accused and the accused in Bourque later agreed to a plea bargain and withdrew his application, the Court did not engage in any further analysis of the application.

 

[26]           Over a month later, on 14 August 2020, in the cases of R. v. Edwards, 2020 CM 3006 and R. c. Crépeau, 2020 CM 3007, d’Auteuil, acting chief military judge (A/CMJ) heard the exact same application and given the lack of reaction from the executive, he issued the two accused in those cases stays of proceedings. One month after that, stays of proceedings were ordered on 10 September 2020 in the case of R. v. Fontaine, 2020 CM 3008 and then again on 11 September 2020 in the case of R. v. Iredale, 2020 CM 4011.

 

[27]           On 15 September 2020, the CDS Order was eventually suspended. However, it was noted that the suspension order referred to the fact that Canadian Forces Organization Order (CFOO) 3763 which sets out the organization of the Office of the Chief Military Judge (OCMJ) remained in effect. It was this reference to CFOO 3763 that gave a second life to the concerns regarding judicial independence.

 

[28]           On 7 and 8 October 2020, as the presiding military judge in R. v. MacPherson, R. v. Chauhan and R. v. J.L., 2020 CM 2012 (MacPherson et al.), I heard further submissions on the lack of judicial independence. This Court accepted, as a fact, that the CDS Order was no longer of force or effect, and I concluded that absent the October 2019 CDS Order, there were sufficient guarantees of judicial independence in the NDA to guarantee an accused’s paragraph 11(d) Charter rights.

 

[29]           However, on 10 November 2020, three weeks after the written decision in MacPherson et al. was rendered, in the case of R. v. Christmas, 2020 CM 3009, d’Auteuil A/CMJ rendered a very different decision on the same indistinguishable issue of judicial independence based on the CDS Suspension Order. Conversely, he found that since the CDS Suspension Order referred to CFOO 3763 which had similar wording to that in the CDS Order, his concerns for judicial independence were not cured.

 

[30]           On 12 to 13 November 2020, in the case of R. v. Proulx, 2020 CM 4012, Pelletier M.J. also heard an application as to whether the CDS Suspension Order had cured deficiencies previously identified in the impugned CDS Order. Pelletier M.J. granted the defence’s application issuing the accused a stay of proceedings. At paragraph 63 of Proulx, he concluded that “Only an acknowledgement of the law established in Pett, to the effect that military judges cannot be charged and dealt with by members of the executive under the disciplinary regime applicable to officers, will fulfill the constitutional principle of independence and impartiality that military judges must enjoy for the benefit of those subject to the CSD.”

 

[31]           On 16 November 2020, the CDS rescinded the controversial paragraphs in the CFOO 3763 which d’Auteuil, A/CMJ identified as giving rise to the violation in Christmas.

 

[32]           In that short window of time, those accused persons who appeared before two of the military judges (Pelletier M.J. and d’Auteuil A/CMJ) who held that the Suspension Order violated an accused’s paragraph 11(d) Charter rights were awarded stays of proceedings while those accused who appeared before me (MacPherson, Chauhan and J.L.) were ordered to stand trial.

 

[33]           On 4 December 2020, in Jacques, d’Auteuil A/CMJ rendered a second decision on the impact of the CDS Suspension Order, but this time he found that the executive’s immediate reaction to revoke the problematic paragraph 9 in CFOO 3763 was sufficient and found no more lingering deficiencies. He dismissed the defence’s application.

 

[34]           On 9 December 2020, in the case of R. v. Cloutier, 2020 CM 4013, Pelletier M.J. found that military judges were still not appropriately shielded from disciplinary action by the executive. He reiterated what he had previously found in Proulx, ordering an acknowledgement of the law set out in Pett to the effect that military judges cannot be charged and dealt with by members of the executive under the Code of Service Discipline (CSD) applicable to officers. He issued a termination of proceedings for the accused member.

 

[35]           On 23 March 2021, after not receiving what he assessed to be sufficient assurances from the CDS and the director of military prosecution (DMP), in R. v. Brown, 2021 CM 4003, Pelletier M.J. issued another stay of proceedings.

 

Chief of the Defence Staff Order 2019

 

[36]           Next, it is important to review the substance of the CDS Order that inspired the applications challenging judicial independence. The concerns regarding the independence of the military judiciary began with the issuance of a Chief of Defence Staff (CDS) Order on 2 October 2019 titled, “CDS DESIGNATION ORDER – DESIGNATION OF COMMANDING OFFICERS WITH RESPECT TO OFFICERS AND NON-COMMISSIONED MEMBERS ON THE STRENGTH OF THE OFFICE OF THE CHIEF MILITARY JUDGE DEPT ID 3763” (CDS Order 2019) which placed military judges under the disciplinary jurisdiction of the military chain of command, who were part of the executive. The controversial paragraphs of CDS Order 2019 read as follows:

 

“1.       I, J. H. Vance, Chief of the Defence Staff, pursuant to subsection 18(1) of the National Defence Act and for the purposes of the definition of “commanding officer” contained in article 1.02 of the Queen’s Regulations and Orders for the Canadian Forces, hereby:

 

a.          revoke the previous designation order of 19 January 2018 with respect to this unit;

 

b.         designate the officer who is, from time to time, appointed to the position of Deputy Vice Chief of Defence Staff (DVCDS) and who holds a rank not below Major General / Rear-Admiral, to exercise the powers and jurisdiction of a commanding officer with respect to any disciplinary matter involving a military judge on the strength of the Office of the Chief Military Judge;

 

. . .  

 

2.         The next superior officer in matters of discipline to whom the DVCDS is responsible, when acting as a commanding officer referred to in paragraph (b) shall be the Vice Chief of the Defence Staff (VCDS)”

[Emphasis added.]

 

[37]           It was the very broad language in the CDS Order 2019, “with respect to any disciplinary matter” that attracted criticism and was viewed as compromising the rights of an accused person under paragraph 11(d) of the Charter.  

 

[38]           The first round of applicants argued that the fact that military judges answered to the chain of command for “any disciplinary” matter leads the informed accused to reasonably conclude that military judges do not enjoy the essential conditions of judicial independence.

 

[39]           The impugned CDS Order 2019, replaced a CDS Oder of the same title, dated 9 January 2018 (CDS Order 2018) with similar wording. CDS Order 2018 was the first CDS order ever issued that specifically focussed on military judges as a group. The evidence suggested that it was drafted in 2018 with the distinct purpose of facilitating the laying of charges against the then serving Chief Military Judge, Colonel Dutil. This explains why this issue rose to the forefront in 2019.

 

[40]           The fact that military judges are also officers in the CAF has been a long-standing custom. However, it is the degree of control that the chain of command has over military judges that underpins the critical issue. In D’Amico, at paragraph 7, I framed the crux of the issue before the Court as follows:

 

The crux of the issue before the Court is not whether the dual roles of officer and military judge are incompatible because both Parliament, and the Supreme Court of Canada (SCC) in R. v. Généreux, [1992] 1 S.C.R. 259, have recognized the role of military judges as both judges and serving officers. Rather, the issue before the Court requires it to consider what constitutes a permissible degree of connection between the military chain of command and its judges that still ensures that every accused appearing before a court martial does so before an independent and impartial tribunal as guaranteed by section 11(d) of the Charter.

 

[41]           As the presiding judge in the case of MacPherson et al, I articulated my original concern with the overbreadth of the CDS Order at paragraph 4 as follows:

 

Put simply, the CDS Order delegated power to the Deputy Vice Chief of the Defence Staff (DVCDS) to lay charges against a military judge if he or she is alleged to have committed a service offence. The fact that military judges might be subject to the Code of Service Discipline (CSD) in their role as serving officers in the Canadian Armed Forces (CAF) is not in and of itself contentious, given their dual role. In fact, by virtue of their ranks, they are automatically captured in general orders. However, the CDS Order focussed specifically on military judges as a group. The CDS Order provides a member of the executive with the power and jurisdiction to charge military judges with respect to “any disciplinary matter”. To put it plainly, this overbreadth is akin to providing local prosecutors in civilian courts with the ability to charge local judges for alleged judicial misconduct that occurs inside the courtroom.

[Footnote omitted.]

 

[42]           In MacPherson et al., I described why the October 2019 CDS Order that pertained to “any disciplinary action” directly conflicted with the immunity protections for military judges as set out in the NDA itself.

 

[60] A military judge also has the same immunity from liability as a judge of a superior court of criminal jurisdiction. Immunity is crucial if military judges are to fulfil their sworn duty to assess the evidence and apply the law. Without this protection, military judges might be prevented from freely expressing themselves in their reasons as to whether they believe a witness is telling the truth. However, the impugned CDS Order as drafted directly implied that military judges were not immune under the CSD in relation to what they say and do in the performance of judicial duties.

 

[61] Consequently, it is absolutely imperative that any interpretation of the NDA be consistent with the legislative provisions set out within the NDA itself, but most importantly, it must comply with the Charter. If the CDS Order had been allowed to stand, the impugned CDS Order not only directly violated section 165.231 of the NDA denying military judges the necessary immunity required in the performance of their judicial duties, but it also violates an accused’s Charter right to be tried by an independent and impartial tribunal. It is worthy to note that without the existence of the CDS Order and pursuant to legal principles and interpretations developed by military judges, the provisions of the NDA would then operate according to the Charter and the common law.

                [Footnotes omitted.]

 

[43]           In short, the concerns originally identified in the court martial jurisprudence focussed on the very expansive wording of “any disciplinary matter” which left open the potential for encroachment by the executive on a military judge in the performance of their duties. With this broad wording, it was technically possible for the executive to discipline military judges for their conduct in the courtroom or with respect to anything in the direct performance of their duties as military judges.

 

[44]           The distinguishing feature between the Pett and D’Amico decisions was the applicability of the CSD to sitting military judges. In Pett, in order to ensure judicial independence, Pelletier M.J. held that military judges could not be charged under the CSD while they were sitting military judges.

 

[45]           Conversely, in D’Amico, in addressing the same concern, I found that the appropriate balance did not require military judges to be above the CSD, but rather called for more involvement by the Military Judges Inquiry Committee when alleged conduct was not criminal and held that due to the potentially conflicting roles of the stakeholders involved, the CSD should only be relied upon as a means of last resort in the administration of discipline.  

 

[46]           In short, in both D’Amico and MacPherson et al., I recognized that military judges are not above the law and advocated that a measured approach in managing the tension arising from their dual status as both officers and judges. I highlighted that this additional layer of accountability under the CSD that military judges are subjected to was unique and not like anything experienced by civilian judges.

 

[47]           From a practical perspective, in the reasons in D’Amico, I suggested that the investigation and consideration of criminal charges against military judges should proceed firstly through the civilian justice system and the CSD should only be relied upon if matters could not proceed through the civilian justice system.

 

[48]           Regarding the applicability of the CSD to sitting military judges, at paragraph 114, the CMAC decision in Edwards et al. was unanimous in finding that:

 

[114] An informed person, viewing the matter realistically and practically—and having thought the matter through could, in our respectful view, reach no other conclusion than military judges meet the minimum constitutional norms of impartiality and independence as required by section 11(d) of the Charter. Military judges are subject to the Code of Service Discipline while they hold office. The impugned order does not a compromise the respondents’ section 11(d) Charter rights. There is no merit to the cross appeal.

 

[49]           It is well understood that the independence of the military judiciary and an accused’s paragraph 11(d) Charter rights underpin the entire military justice system; however, for the purpose of the applicant’s case, we must put the current risk to judicial independence into its proper perspective.

 

[50]           Prior to the CMAC decisions being rendered by unanimous three-member panels, there was only one sitting military judge who was of the view that there remained an impediment to judicial independence that affected the rights of an accused under paragraph 11(d) of the Charter. Pelletier M.J. felt that the situation required direct assurances from both the CDS and the DMP that military judges would not be subject to discipline under the CSD.

 

[51]           However, the CMAC could not have been clearer in finding that the CSD does apply to military judges as a result of their status as officers in the CAF. However, even if the CMAC panels were wrong, it is important to note that in response to Pelletier M.J.’s decision rendered in Cloutier, DMP has provided assurances to the judiciary that it would not pursue any disciplinary action against any of the military judges while this matter is under appeal. DMP provided a statement which reads as follows:

 

“The DMP respects the rule of law. The DMP acknowledges the various courts martial decisions regarding the independence of military judges, including: R. v. Pett, R. v. D’Amico, R. v. Edwards, R. v. Crépeau, R. v. Iredale, R. v. Christmas, R. v. Jacques, R. v. Proulx, R. v. Cloutier, R. v. MacPherson et al and R. v. Pépin. The DMP continues to act in accordance with the law in the exercise of his legal duties. While the issue of the independence of the military judges is under appeal, the DMP will not recommend the laying of charges, nor prefer charges for court martial, against a military judge.”

 

[52]           Considering DMP’s responsibilities and functional role regarding the laying and preferring of charges under the CSD, the above statement effectively assures that at this time, while the above cases remain under appeal, DMP will not recommend the laying of charges, nor prefer charges against any of the sitting military judges.

 

[53]           Consequently, I find that the risks that were identified in the nine cases that are currently before the SCC regarding judicial independence have either been cured or mitigated to such an extent that they are not relevant to the circumstances of the applicant.

 

[54]           In short, there is currently no institutional mechanism to give effect to trying military judges before court martial under the CSD.  However, to be clear, this is not to say that charges could not be laid in a civilian criminal court.  Essentially, this means that the approach the Court recommended in D’Amico and MacPherson et al., is the status quo. This approach properly mitigates the risks posed by the unique structure in the CAF.

 

[55]           In summary, the landscape that existed in late 2020 that triggered the deluge of applications arguing a lack of judicial independence is very different than that which exists today. There appears to be no outstanding deficiencies and DMP’s assurance that while the issue is under appeal, they will not recommend nor prefer charges under the CSD against military judges mitigates any risk. In other words, the deficiencies identified in 2019 and 2020 that underpin the cases before the SCC, are abated.

 

[56]           I proceeded next to examine the doctrine of stare decisis and how our courts martial have dealt with similar requests when issues pivotal to our military justice system are properly before an appeal court.

 

Stare Decisis

 

[57]           Subject to a few narrow exceptions, which are not relevant to the case at bar, stare decisis is a legal principle that obligates military judges to follow the precedent established in prior decisions made by the CMAC and the SCC. The unanimous Court of the SCC in Carter v. Canada (Attorney General), 2015 SCC 5, the SCC said, at paragraph 44:

 

“The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty while permitting orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”.

[Citation omitted.]

 

[58]           This is not the first time, that important matters related to the military justice system have gone to the SCC for consideration. As military judges, we have been asked to decide on individual requests for adjournment where the specific issues before the SCC relate to the exact issues that an accused faced in their respective court martial.

 

[59]           As an example, shortly after the CMAC issued its decision in the case of R. v. Beaudry, 2018 CMAC 4 where it ruled that paragraph 130(1)(a) of the NDA was unconstitutional in that it violated a service member’s right to trial by jury for offences with a maximum sentence of five years or more, in the case of R. v. Ryan, 2018 CM 2033, the defence filed an application seeking to terminate the court martial proceedings for lack of jurisdiction. In Ryan, the Court had to exercise appropriate judicial discretion to determine the next steps. However, in that situation, there were competing CMAC decisions, being R. v. Royes, 2016 CMAC 1 and Beaudry, that directly conflicted on the same indistinguishable issue that affected the applicant in Ryan.

 

[60]           In Ryan, the Court was asked to make a ruling in the face of the apparent contradiction within the confines of vertical stare decisis. Considering the uncertainty that flowed from the contradictory CMAC decisions on the exact issue to be decided at the SCC, the Court found that the appropriate remedy was to adjourn the applicant’s case to await a decision from the SCC. However, in the case at hand, the CMAC was unanimous in all nine cases that have been decided.

 

[61]           In the fall of 2020, when the issue of judicial independence was being raised, considering the break in judicial comity between military judges at the court martial level, in the case of R. v. Cogswell, 2020 CM 2014, I was asked to recuse myself. I had recently rendered a decision in MacPherson et al. that was the least advantageous to the applicant. Being mindful of and sensitive to the fact that at that specific time, the accused persons who appeared before me, and who filed the exact same application were ordered to stand trial, while other accused members who in some cases were charged with more serious offences and who appeared before the two other military judges were being granted stays of proceedings.

 

[62]           In light of the very exceptional circumstances surrounding the issue that was before the CMAC for its consideration and the break in judicial comity at the court martial level, in fairness to the interests of Bombardier Cogswell, the Court adjourned the hearing of her Charter paragraph 11(d) application and her court martial until the CMAC had rendered its decision on the merits of the issue of judicial independence. The Court exercised similar discretion in adjourning both the courts martial of MacPherson and J.L. until the CMAC had issued a decision on the matter. However, as soon as the CMAC decision in Edwards et al., was rendered, in Cogswell the Court denied a subsequent request to adjourn her court martial pending the appeal to the SCC.

 

[63]           As I discussed above, with the Suspension Order in effect and the revocation of the controversial paragraph in the CFOO, combined with DMP’s assurances not to lay or prefer charges against military judges until the resolution of the appeals on the issue of judicial independence, the underlying facts that formed the basis of the arguments currently before the SCC no longer exist. I have been provided with no additional evidence to suggest there are any remaining deficiencies that compromise this court martial.

 

[64]           I find that there is no evidence before the Court to provide authority to sidestep the requirements that flow from vertical stare decisis currently binding military judges on this issue. Considering the operational constraints currently facing military personnel, I find that the importance of an efficient and properly functioning discipline system is paramount to the CAF mission success and any decision permitting the adjourning of courts martial for the upcoming year will not only be detrimental to operations and discipline, but it will also be damaging to the fundamental purpose of a military justice system.

 

Conclusion

 

[65]           After assessing all the above circumstances, I am satisfied that the applicant’s request for an adjournment, which is estimated to be for approximately one year to await a decision from the SCC on the issue of judicial independence, is without merit. To grant an adjournment based on this rationale, would put significant competing interests at risk and would have very negative second order effects for the entire military justice system compromising an essential discipline tool for the CAF. Further, based on the evidence before the Court at this time, I find that the deficiencies that were originally identified as raising concerns of judicial independence and expected to be argued at the SCC, have been cured or completely mitigated.

 

[66]           The Court is always attentive to the personal circumstances of accused persons and if this case proceeds and there are personal complications that must be managed, that is the appropriate time to do so.

 

[67]           After assessing all the factors discussed above and weighing all the relevant considerations and balancing all the interests at play, I am of the view that the trial should proceed as scheduled.

 

FOR THESE REASONS, THE COURT:

 

[68]           DISMISSES the application.

 

[69]           ORDERS that the trial by Standing Court Martial continue as scheduled.

 

Counsel:

 

Major E. Carrier, Defence Counsel Services, Counsel for Master Corporal S.L. Dondaneau, Accused and Applicant

 

The Director of Military Prosecutions as represented by Major D. Moffatt, Prosecutor and Counsel for the Respondent