The Power of Perspectives

The Canadian Bar Association

Emily Alderson

The independence of military and criminal prosecutions

June 9 2016 9 June 2016

 

The Canadian military maintains a distinct justice system that is unfamiliar to most civilian lawyers. But the two systems are more interconnected that they first appear. A pair of cases currently on reserve at the Supreme Court of Canada, arising from the military system, hold potentially significant implications for both military and civilian prosecutors across the country.

R. v. Cawthorne and R. v. Gagnon deal with the independence required when the military decides to appeal a case. The two cases were heard by the Supreme Court together in April, with the latter incorporating a third case, R. v Thibault. Gagnon challenges the Minister of Defence’s power to appeal cases beyond the court of first instance (court martial for the military). Cawthorne considers the Minister’s power to appeal Court Martial Appeal Court decisions up to the Supreme Court.  

These cases were a hot topic during the Canadian Bar Association’s annual Military Law Conference last week in Ottawa, where several military prosecution personnel were present, including current Director of Military Prosecutions, Colonel Bruce MacGregor. In particular, Major Dylan Kerr, regional military prosecutor, spoke about the potential ramifications of Cawthorne and Gagnon during his presentation on recent developments in military law.

The significance of Cawthorne and Gagnon lies in how to decisions to advance cases are made in the military. Currently, the Canadian Military Prosecution Service oversees the prosecution of courts martial. The Director of Military Prosecutions (DMP), a military lawyer appointed by the defence minister, decides which cases to pursue. However, the National Defence Act reserves the decision-making power regarding appeals for the minister (see section 230.1 and subsection 245(2)). In practice, the minister has delegated that power back down to the DMP, who can make a decision to appeal a case with or without input from an appeals committee.

Last December, the Court Martial Appeal Court in Gagnon struck down the minister’s power to appeal first-instance decisions. The court held that prosecutorial independence is a principle of fundamental justice. Therefore, under section 7 of the Charter, such independence must be present if a person is to be deprived of his or her liberty (i.e. imprisoned, a possible outcome of a court martial). The current arrangement was deemed inadequate: as a politician and member of cabinet, the minister is insufficiently independent to oversee prosecutions. The concern is that the minister might be unduly influenced by politics when deciding to launch an appeal that could lead to the imprisonment of his own employees. In Cawthorne, the respondent is now challenging the minister’s power to appeal to the Supreme Court under sections 7 and 11(d) of the Charter, citing Gagnon. In both cases, the defence is arguing that prosecutorial independence can be sufficiently maintained in the way decisions are made without altering the institutional arrangements.

The defence minister is not the only person wearing the dual hats of politician and prosecutor. Provincial and federal attorneys-general are political positions and they often retain some power over prosecutions and appeals. At the provincial level, offices operate differently: but if the Supreme Court upholds Gagnon, having a politician at the helm of prosecutions, even in a titular role, will be unacceptable. Legislative changes will be required to ensure military cases can still be appealed, and that civilian prosecutors are sufficiently at arms-length from their political counterparts. The presence of five interveners — the attorneys-general of Canada, Quebec, BC and Ontario, as well as Quebec’s director of public prosecutions — indicates just how concerned the civilian system is about the outcome of Cawthorne and Gagnon.

This year’s Military Law Conference, with a mix of civilian and military attendees, highlighted just how much the two justice systems affect one another. Of course, the influence goes both ways, with civilian cases frequently affecting military policies (for example, this year the military has to adapt their policies following R. v. Smith on access to non-dried forms of medical marijuana). But in the coming weeks, prosecutors from both sides will be in the same boat, anxiously awaiting the results of Cawthorne and Gagnon

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