Presumed independent

By Justin Ling Web Only

Presumed independent


Canada’s military justice system withstood a constitutional challenge today, as the Supreme Court of Canada ruled unanimously that the Minister of National Defence’s authority over court martial appeals does not violate section 7 of the Canadian Charter

The case R. v. Cawthorne involved an officer — an ordinary seaman in the Canadian navy — who was accused of possessing child pornography.

At trial, presided over by a military judge, the officer’s ex-girlfriend testified that he had told her about “inappropriate” images on his phone, and that he had been arrested for them. In cross-examination, she told the court that he merely made mention of the charges, but had not admitted his guilt.

But in re-examination, prosecutors asked her whether the accused, in fact, had admitted to her he had done these things. The ex-girlfriend responded in the affirmative.

Defence objected. The judge agreed, and told the jury to ignore the exchange as: “unreliable and prejudicial.” The defence wanted more: they wanted a mistrial. They didn’t get it.

The jury found the accused guilty on two pornography counts. The officer appealed a Court Martial Court of Appeal declared that a mistrial should’ve been ordered.

But here is where the quirks of the military justice system come up — the Minister of National Defence ordered an appeal to the Supreme Court.

Making the case that “prosecutorial independence protects prosecutorial discretion from both political interference and judicial supervision,” the accused charged that “the Minister is arguing for near-absolute unreviewable discretion despite the fact that he may not be reasonably perceived as independent,” according to the defence’s factum. It goes on that, because the option of appeal was removed from the prosecutors and vested in the minister’s office, the federal government is essentially stepping over prosecutorial independence: “Prosecutorial independence and prosecutorial discretion are two sides of the same coin.”

The Attorney General countered that prosecutorial independence differs from the principle of judicial independence and that the defence’s argument — that prosecutorial independence is part and parcel of the constitutional framework, and fundamental to the Canadian legal system — is simply untrue. Further, the idea that the Minister of National Defence cannot adequately exercise independence or discretion is bunk.

The top court agreed.  “The Minister, like the Attorney General or other public officials with a prosecutorial function, is entitled to a strong presumption that he exercises prosecutorial discretion independently of partisan concerns,” the Court wrote. “The mere fact of the Minister’s membership in Cabinet does not displace that presumption. Indeed, the law presumes that the Attorney General — also a member of Cabinet — can and does set aside partisan duties in exercising prosecutorial responsibilities. There is no compelling reason to treat the Minister differently in this regard.”

In the end, the case presented an opportunity for the Supreme Court to order significant changes to the military justice system, a structure that exists mostly outside the realm of the normal legal procedures. It declined to make any major changes.

Justin Ling is a regular contributor based in Toronto.

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