|Justice (ret) Gilles Létourneau|
First, unless there is a military nexus with the offence charged, s. 130 of the National Defence Act (Act), which allows for the trial of ordinary criminal law offences by military tribunals, is unconstitutional for overbreadth. Even if , as in this case, the military nexus requirement was satisfied, an accused can challenge the constitutionality of the law or provision on which the charged is founded. By military nexus, the CMAC means that the offence charged must be a “service connected offence”, i.e., one that is so connected with the service in its nature, and in the circumstances of its commission, that it would tend to affect the general standard of discipline and efficiency of the service of the Canadian Forces.
Second, the requirement of a military nexus is of the very essence of Canadian military law since the early eighties and especially since the advent of the constitutionally entrenched Canadian Charter of Rights and Freedoms (the Charter). In conformity with the principles of interpretation of the Canadian Constitution, the CMAC read down the scope of s. 130 by reading in its text the requirement of a military nexus.
Third, the Canadian Parliament was at all times aware of this military nexus connection required by the CMAC and never saw fit to legislatively overrule the judicial interpretation of s. 130 and par. 11 (f) of the Charter.
Fourth, prosecutions before military tribunals deprive an accused of his constitutional right to a trial by a jury. Any derogation to the benefit of a trial by a jury ought to be interpreted restrictively.
Fifth, the discretion of the Director of Military Prosecutions (DMP) to lay charges does not prevent a constitutional challenge to s. 130 and cannot be invoked to save the constitutionality of that section. The DMP’s discretion must be exercised in an autonomous manner, independently and without any pressure from the chain of command. The CMAC reserved for another time its opinion on the scope of the instructions that the Judge Advocate General (JAG) may give to the DMP under s. 165.17 of the Act: see par. 16 and note 17 of the reasons for judgment.
In a case which immediately preceded this one (Her Majesty The Queen v. Wehmeier, 2014 CMAC 5), the CMAC equated the discretion of the DMP with that of the Attorney General. I immediately expressed great reserve about this equation because the Attorney general is the ultimate guardian of the public peace. He is elected and not bound by the decisions of Cabinet when he exercises his powers and duties with respect to the administration of justice. He is also accountable before Parliament.
By contrast, the DMP falls under the general supervision of the JAG who himself is part of the chain of command, commander of all military lawyers and not accountable to Parliament. The DMP exercises no role as ultimate guardian of the public peace. His role is confined to military prosecutions. He is neither elected nor accountable to Parliament. In plain words, the DMP does not institutionally enjoy the same guarantees of independence as the Attorney General and the Director of Public Prosecutions. Pursuant to ss. 165.17 (2) and (3) of the Act, the JAG may issue to the DMP both general instructions in respect of prosecutions and specific instructions in respect of a particular prosecution.
I believe the CMAC seized the opportunity in Larouche to narrow the scope of its earlier equation. As the CMAC said in Larouche, s. 165.17 of the Act raises different questions of legislative interpretation and constitutional issues. Whatever the scope of the equation at the present time, it is clear from the Larouche decision that the discretion of the DMP can be challenged on a case by case basis should there be evidence of interference by, or involvement of, the chain of command in the DPM’s decision to prosecute, not prosecute or prosecute on charges different from those that he or she believed were the appropriate charges to lay.