Canada (Military Prosecutions) v. Canada (Chief Military Judge)

Canada (Military Prosecutions) v. Canada (Chief Military Judge)
Court (s) Database
Federal Court of Appeal Decisions
Date
2007-12-10
Neutral citation
2007 FCA 390
File numbers
A-53-07
Notes
Digest
Decision Content
Date: 20071210
Docket: A-53-07
Citation: 2007 FCA 390
CORAM: NOËL J.A.
SEXTON J.A.
TRUDEL J.A.
BETWEEN:
DIRECTOR OF MILITARY PROSECUTIONS
Appellant
and
CHIEF MILITARY JUDGE
and COURT MARTIAL ADMINISTRATOR
Respondents
Heard at Ottawa, Ontario, on November 13, 2007.
Judgment delivered at Ottawa, Ontario, on December 10, 2007.
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: SEXTON J.A.
TRUDEL J.A.
Date: 20071210
Docket: A-53-07
Citation: 2007 FCA 390
CORAM: NOËL J.A.
SEXTON J.A.
TRUDEL J.A.
BETWEEN:
DIRECTOR OF MILITARY PROSECUTIONS
Appellant
and
CHIEF MILITARY JUDGE
and COURT MARTIAL ADMINISTRATOR
Respondents
REASONS FOR JUDGMENT
NOËL J.A.
[1] This is an appeal by the Director of Military Prosecutions (“DMP”) from a decision of the Federal Court whereby Snider J. (the “Applications Judge”) refused to compel the Chief Military Judge (“CMJ”) to assign a military judge and require the Court Martial Administrator (“CMA”) to issue the order convening a court martial. The DMP asks that this decision be set aside and that an order be issued compelling the CMJ to assign a military judge to preside at a Standing Court Martial and compelling the CMA to convene a Standing Court Martial forthwith.
[2] For ease of reference, the statutory and regulatory regime relevant to the disposition of this appeal is set out in Annex I to these reasons.
RELEVANT FACTS
[3] The Canadian Forces have created a special operations unit, whose function is the conduct of counter-terrorism operations, Joint Task Force 2 (“JTF2”). Information concerning the identity of JTF2 members as well as their movement or deployment is protected from public release, to avoid injury to Canada’s national defence (National Defence Security Instruction number 27 (“NDSI 27”); NDHQ Instruction DCDS 05/1993, Security and Public Affairs Policy – Joint Task Force Two (“DCDS 05/1993”). This policy provides that information such as names, addresses and specific employment of Canadian Forces personnel cannot be publicly associated with JTF2. Also protected from public disclosure is information concerning the movement or deployment of unit personnel for a particular operation (Affidavit of Major Cloutier, Appeal Book, p. 74, para. 6).
[4] The accused is a warrant officer serving in JTF2. It is alleged that on August 10 2005, while serving in Afghanistan with his unit he committed aggravated assault and ill-treated a subordinate, who was also a member of JTF2. The first offence is said to have been committed contrary to section 130 of the National Defence Act, R.S. 1985, c. N-5 (the “National Defence Act”) and section 268 of the Criminal Code and the second, contrary to section 95 of the National Defence Act (Affidavit of Major Cloutier, Appeal Book, p. 73, para. 3 and p. 75, para. 10).
[5] In order to bring the accused to justice, recourse was had to the military justice system. The military justice system is a two-tiered tribunal structure that includes a summary trial system and, the more formal court martial system. There is no permanent court martial. Rather, it functions through an ad hoc court martial that is constituted as and when it is convened to address specific charges. A court martial can sit within or outside of Canada wherever it can conveniently be convened.
[6] Pursuant to this scheme, the charges were referred to the commanding officer of the accused who then referred them to the Deputy Chief of the Defence staff who in turn referred them to the DMP, together with the Record of Disciplinary Proceedings, the Report of Investigation and the evidence, all of which were classified SECRET (Affidavit of Major Cloutier, Appeal Book,
p. 74, para. 8). A recommendation that a court martial dispose of the charges also accompanied the referral.
[7] The DMP, who by virtue of sections 165 and 165.11 of the National Defence Act, is responsible for the preferring of all charges to be tried by court martial – as well as the conduct of all prosecutions (section 165.11 of the National Defence Act), the determination of the type of court martial that is to try the accused and for informing the CMA of that determination (section 165.14 of the National Defence Act) – preferred the charges for trial by a Standing Court Martial and her delegate completed a charge sheet.
[8] Given the nature of the information which had to be reflected in the charge sheet pursuant to subsection 110.06(2) of the Queen’s Regulations & Orders for the Canadian Forces (the “QR&Os”), including in particular the name of the accused together with his unit of operation, the name of the alleged victim as well as the precise location in Afghanistan where the offences are alleged to have been committed, the charge sheet was classified SECRET pursuant to
DCDS 05/1993 (Affidavit of Major Cloutier, Appeal Book, p. 75, para. 11; Cross-examination of Major Cloutier, Appeal Book, pp.203, 204). Pursuant to the legislative scheme, the DMP forwarded the classified charge sheet to the CMA, in order for the CMJ to assign a military judge to the case, pursuant to section 165.25 of the National Defence Act, and for the CMA to issue an order convening a Standing Court Martial, pursuant to subsection 165.19(1) of the National Defence Act.
[9] The CMJ refused to assign a military judge because, in her opinion, doing so in circumstances where the charge sheet and the accompanying documentation is classified SECRET would contravene the Canadian Charter of Rights and Freedoms and the open court principle, as codified by section 180 of the National Defence Act. Given this refusal, the CMA has been unable to fulfill her duty to issue a convening order since she could not identify the military judge whose name is to appear on that order pursuant to subsection 111.02(2) of the QR&Os.
[10] Upon being notified of the CMJ’s decision, the DMP took steps to alleviate the concerns of the CMJ. The DMP advised both the CMJ and the CMA that, although the charge sheet would initially have to be sealed, the prosecutor would, upon the court martial being convened, make an application before the military judge assigned to preside for an order limiting public access to the classified information to be disclosed during the trial.
[11] The solution proposed by the DMP is set out in the following passage quoted by the Applications Judge at paragraph 26 of her reasons:
Indeed, the straightforward, practical and lawful solution to address the legitimate concern raised by the CMJ with respect to [how] the classified information contained in a charge sheet can be protected would be for her to assign a military judge to permit the CMA to convene a court martial. This military judge would then have jurisdiction to determine the DMP's preliminary application brought pursuant to s. 180 of the National Defence Act to protect the information in issue from public disclosure. In this manner, a full and frank debate could be held with respect to this issue before the military judge who will then apply the "Dagenais/Mentuck" approach in determining whether or not to grant the request of the prosecution.
[12] The immediate problem sought to be resolved by the DMP in advancing this proposal was to prevent classified information from being disclosed before a ruling could be rendered on the matter. Although, subsection 180(2) of the National Defence Act allows proceedings to be held in camera (in whole or in part), and subsection 112.03(2) of the QR&Os authorizes a Standing Court Martial, once convened, to deal with preliminary motions, no such motion can be addressed until a military judge is assigned and takes the oath, an event which, according to the prescribed procedure, only takes place at the commencement of the court martial proceedings for which the military judge is assigned (paragraph 112.05(4)(a) of the QR&Os). The solution proposed by the DMP requires that the charge be sealed until such time as a military judge is assigned and is in a position to rule on the issue of disclosure. (The complete process in sequence is set out in Annex II to these reasons.)
[13] Despite repeated requests that the matter be reconsidered, the CMJ maintained her decision not to assign a military judge. Faced with this continued refusal, the DMP brought applications before the Federal Court to compel the CMJ and the CMA to perform their respective duty to assign a military judge and to convene a Standing Court Martial.
[14] The application against the CMA (Court file No. T-1967-05) and the one against the CMJ (Court File No. T-1968-05) came before the Applications Judge, who dismissed both in a single set of reasons. This is the decision under appeal. Before turning to this decision, it is useful to first review the decision of the CMJ.
CHIEF MILITARY JUDGE DECISION
[15] In a memorandum to the CMA, (also sent to the DMP), the CMJ sets out her reasons for refusing to assign a military judge (CMJ’s Reasons, Appeal Book, p. 147). The reasons begin with the following (CMJ’s Reasons, para. 1):
You have asked me to assign a military judge to a matter where the charge sheet and accompanying documentation is classified secret in its entirety. I have considered this matter carefully and have come to the conclusion that I cannot assign a military judge to a proposed court martial in such a circumstance. I would direct you to advise the prosecution and defence involved of my decision and provide them a copy of this letter.
[16] The CMJ then sets out the statutory framework within which she is making her decision (CMJ’s Reasons, para. 2):
One of the statutory duties of the Chief Military Judge, pursuant to section 165.25 of the National Defence Act, is to assign military judges to preside at courts martial and to perform other judicial duties under the National Defence Act. In exercising this function, as with any other judicial function, the Chief Military Judge must comply with the laws of Canada and more specifically the Canadian Charter of Rights and Freedoms, the decisions of the Supreme Court of Canada, the Court Martial Appeal Court and, where applicable, the Federal Court of Canada.
[17] The CMJ outlines at paragraph 3 the usual process followed in convening a court martial and writes, “The usual process followed in convening a court martial is that a charge sheet, without any classification on its face is received at the Office of the Chief Military Judge”. Subsequently, a military judge is assigned, who can then consider issues of confidentiality as per subsection 180(2) of the National Defence Act.
[18] However, where the charge sheet is classified, assigning a judge “would be to accept a presumption of secrecy” (CMJ’s Reasons, para. 6):
No public notification could be made of the fact the court martial was taking place as all relevant information such as the nature of the charges, the identity of the accused and the time, date and place the court martial is to be held would all be covered by the classification imposed by the prosecution and could not be made public. The accused would be in the position of having to make an application if he or she wished to have her or his trial open. No other interested parties could or would be informed of the existence of the charges or of any such application. Any such application would be made in the context of an existing presumption of secrecy. If no such application is made, then the court martial is not open to the public.
[19] The CMJ goes on to explain some of the practical difficulties which this would entail (CMJ’s Reasons, para. 7):
Indeed, on a very practical level, this approach would raise issues such as how a court martial could begin, given that Queen’s Regulations and Orders for the Canadian Forces, subsection 112.05(2), elaborating on section 180 of the National Defence Act, states that at the beginning of court martial proceedings, members of the public shall be admitted? How could the accused be brought before a court martial that is open to the public and identify him or herself as the accused person when his or her identity is classified by the charge sheet? How could the prosecutor comply with the regulatory requirement at the beginning of a court martial to read the charge sheet?
[20] At the close of her reasons, the CMJ reiterates her view that assigning a judge where a charge sheet is classified would be tantamount to sanctioning a closed trial (CMJ’s Reasons,
para. 9):
It may be possible to provide an unclassified charge sheet to permit the assignment of a military judge. I do not know. In this case however, the effect of assigning a military judge to a court martial, which the government has designated as classified, is to accept and to follow a presumption of secrecy.
FEDERAL COURT DECISION
[21] The Applications Judge begins her reasons by indicating that in order for a writ of mandamus to issue, there must be a duty to act. She goes on to examine the question whether in the absence of a judicial determination that a charge be kept confidential, there is a legal duty for the CMJ to assign a military judge (Reasons, para. 7).
[22] Before examining this question, the Applications Judge observes that while subsection 180(2) of the National Defence Act allows a military judge to order that proceedings be held in camera where this is necessary in the interests of public safety or defence, no such order can issue until a military judge is actually assigned. According to the Applications Judge (Reasons, para. 18):
As the National Defence Act exists today, preliminary matters may be heard and determined only after a military judge is assigned to preside over the court martial and the court martial is convened. There is nothing in the National Defence Act that allows for the appointment of a military judge to consider preliminary matters such as the sealing of a charge.
[23] The Applications Judge then points to a proposed amendment to the National Defence Act which died on the order paper of the last Parliament (section 50 of Bill C-7, An Act to amend the National Defence Act, 1st sess., 39th Parl., 2006):
187. At any time after a charge has been preferred but before the commencement of the trial, any question, matter or objection in respect of a charge may, on application, be heard and determined by any military judge or, if the court martial has been convened, the judge assigned to preside at the court martial.
187. À tout moment après le prononcé d’une mise en accusation et avant l’ouverture du procès de l’accusé, tout juge militaire ou, si la cour martiale a déjà été convoquée, le juge militaire la présidant peut, sur demande, juger toute question ou objection à l’égard de l’accusation.
According to the Applications Judge this provision, if enacted, would have provided a complete answer to the problem with which she was confronted. However, the amendment did not pass and her task therefore was to determine whether, in the absence of a legislative process by which preliminary matters of confidentiality can be addressed, the CMJ had the duty to assign a military judge (Reasons, para. 20).
[24] Dealing with this question, the Applications Judge said (Reasons, para. 27):
I do not dispute that, once assigned, a military judge would have jurisdiction to consider an application for confidentiality (s. 180, s. 187, National Defence Act). However, the question before me arises prior to the assignment of the military judge. What is obvious is that there is no possibility, within the ambit of the National Defence Act or its regulations, of dealing judicially with confidentiality matters prior to the assignment of a judge. Until that time, there is no court. The question is not whether the court martial judge can consider these matters; he or she can. Rather, the relevant question is: can the Administrator and the CMJ take the steps to convene a court martial without judicial consideration of whether certain information (the name, service number and rank of the Accused) may be withheld at that stage?
[25] According to the Applications Judge, the open court principle extends to every stage of a proceeding including the one which follows the preferment of the charge and precedes the assignment of a military judge. She writes at paragraph 39:
What is evident is that, at this preliminary stage, all of the parties involved are subject to DCDS 05/1993. That is, the DMP, the Administrator and the CMJ are bound to keep confidential certain information contained in the charge; they must obey military orders. This, in my view, creates a very real apprehension that none of the three decision-makers can bring an unfettered discretion to the question of disclosure at this preliminary stage. (As an aside, I assume that a military judge assigned to the court martial would not be bound to follow such orders where they conflict with his or her judicial duties.) Without a separate, independent review of the question of secrecy at this stage, how can we be satisfied that the need for confidentiality outweighs the need for full and immediate disclosure?
[26] She goes on to conclude in the next paragraph that the unilateral decision by the DMP to seal the charge pending review by the military judge violates the open court principle (Reasons, para. 40):
Given the nature of the charges and the possible impact on the Accused and others who may have an interest in the proceedings, I see no reason why the same constitutional protections afforded at the preliminary stages of criminal proceedings, should not apply to all stages of proceedings involving the Accused. In my view, it offends the underlying principles for the DMP to unilaterally seal the charge or for the CMJ to accept this decision of the DMP.
Because the decision of the DMP offended the open court principle, the CMJ did not have to perform her statutory duty to assign a military judge, and therefore, a mandamus could not issue.
[27] The Applications Judge then addressed the question whether in any event the DMP had met the burden demonstrating that there were no adequate alternative remedies for addressing the problem (Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), aff’d [1994] 3 S.C.R. 1100). According to the Applications Judge, the DMP had two alternatives to sealing the charges, i.e., obtaining an administrative accommodation or acting pursuant to section 38 of the Canada Evidence Act, R.S.C. 1985, c, C-5 (the “Canada Evidence Act”) (Reasons, paras. 45-72). The existence of these alternatives was sufficient in itself to justify her refusal to issue a writ of mandamus (Reasons, para. 73).
POSITION OF THE PARTIES
[28] The DMP submits that under section 165.25 of the National Defence Act, the CMJ had a legal duty to assign a military judge and that the DMP’s proposal that the charge be sealed and a military judge be assigned so that an application under subsection 112.03(2) of the QR&Os and subsection 180(2) of the National Defence Act can be brought to deal with the issue of confidentiality, is the only viable solution. The DMP submits that the same process had successfully been employed in a nearly identical situation in the past (Affidavit of Major Cloutier, Appeal Book, p.75, para. 9).
[29] According to the DMP, the Applications Judge erroneously accepted the conclusion by the CMJ that a classified charge sheet would somehow render the entire trial presumptively secret and that, therefore, she was required to consider the constitutionality of a secret court martial. The proper presumption, according to the DMP is that the trial would be “presumptively open” (DMP’s Memorandum of Fact and Law, paras. 35, 39).
[30] Furthermore, the Applications Judge erred in finding that the open court principle applied at the stage where the CMJ assigns a military judge. According to the DMP, the CMJ’s duty to assign a judge is an administrative task to which the open court principle does not apply (DMP’s Memorandum of Fact and Law, paras. 44, 45).
[31] Finally, the Applications Judge failed to recognize that the open court principle is not absolute. As the Supreme Court of Canada explains in Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 S.C.R. 188 (“ Toronto Star”), the interlocutory protection of sensitive information, even if by unilateral action of one of the parties, is constitutionally permissible. This action in this case (i.e., the unilateral sealing of the charge) will allow the assigned military judge to hear and decide the extent to which the classified information can be protected from public disclosure (DMP’s Memorandum of Fact and Law, paras. 47-49).
[32] With respect to the question whether there are adequate alternative remedies, the DMP submits that the Applications Judge erred in suggesting that an administrative accommodation might have been available. The DMP further submits that section 38 of the Canada Evidence Act cannot possibly apply. According to the DMP, there is no reasonable alternative to the solution that she proposes. (DMP’s Memorandum of Fact and Law, paras. 55, 56 and 62-68).
[33] The CMJ supports the decision of the Applications Judge essentially for the reasons that she gave. The CMJ insists in particular on the Applications Judge’s conclusion that the CMJ has no duty to proceed with the assignment of a military judge in the absence of a legislative process by which preliminary matters of confidentiality can be addressed. According to the CMJ all the issues raised in this appeal should be analyzed with this legislative gap in mind (CMJ’s Memorandum of Fact and Law, para. 34).
[34] The CMA for her part adopts a neutral position. She maintains that the CMA has the duty to issue a convening order only to the extent that the CMJ has a duty to appoint a military judge. Accordingly, the critical issue is whether the CMJ has this duty (CMA’s Memorandum of Fact and Law, para. 22).
ANALYSIS AND DECISION
[35] The parties did not make elaborate submissions on the applicable standard of review. I accept, as the CMJ suggested at paragraph 38 of her Memorandum of Fact and Law, that the decision to grant relief in the nature of a mandamus is discretionary in nature. However, the issue whether the solution proposed by the DMP offends the open court principle such that the CMJ no longer must perform her statutory duty to assign a military judge, raises a question of law which must be assessed on a standard of correctness.
[36] The DMP submits that the Applications Judge and the CMJ committed a fundamental error by conducting their analysis on the basis that the trial of the accused would be presumptively secret, if allowed to proceed on the basis of a classified charge. According to the DMP, had they conducted their analysis on the basis that the trial of the accused would be open, they would have reached a different conclusion.
[37] In this respect, I note that although the CMJ did hold that “… the effect of assigning a military judge to a court martial; which the government has designated as classified, is to accept and to follow a presumption of secrecy” (Reasons of the CMJ, para. 9), the Applications Judge did not accept that the trial of the accused, would be presumptively secret. Her assumption was that a military judge would act in accordance with his or her judicial duties (Reasons, para. 39).
[38] The position taken by the Applications Judge is the correct one. By their oath of office, taken at the commencement of the proceeding to which they are assigned, military judges swear that they will exercise their judicial functions with impartiality (section 112.16 of the QR&Os). Like any other judge, the military judge assigned to the present case would be called upon to weight any claim for non disclosure against the open court principle, and determine the extent to which, if any, information should not be made public.
[39] The Applications Judge’s problem with the solution proposed by the DMP is not based on concerns about the military judge’s capacity to address the issue of disclosure once a court martial has been convened (Reasons, para. 27). It rests entirely with the fact that at the pre-assignment stage, none of the actors (the DMP, the CMJ or the CMA) can bring an unfettered discretion to the question of disclosure (Reasons, paras. 35, 39). According to the Applications Judge, the presumption of openness of court proceedings must also be observed at that stage, and the sealing of the charge by the DMP before a judge is assigned offends the open court principle (Reasons,
para. 40).
[40] In my respectful view, this gives the open court principle an effect which it does not have. The open court principle is not absolute. As was stated in Toronto Star, supra, (para. 3):
The freedoms I have mentioned [freedom of communication and freedom of expression], though fundamental, are by no means absolute. Under certain conditions, public access to confidential or sensitive information related to court proceedings will endanger and not protect the integrity of our system of justice. A temporary shield will in some case suffice; in others, permanent protection is warranted.
[41] Where information is sought to be protected from disclosure in a court proceeding, a balancing exercise must be conducted by an independent decision maker in order to determine whether the open court principle outweighs the interests sought to be protected by preventing the information from being disclosed (Toronto Star, supra, at paras. 7, 8). In this case, the decision by the DMP to seal the classified charge was taken in order to allow a military judge to rule on the question of disclosure.
[42] The Applications Judge insists on the fact that at the particular stage when the charge was sealed (i.e., after it was preferred but before a judge was assigned), neither the DMP, the CMJ or the CMA could “bring an unfettered discretion to the question of disclosure” since they were all bound by the policy reflected in DCDS 05/1993 (Reasons, para. 39). No doubt this is so, but that it seems is why the DMP had to take steps to allow a military judge to bring an independent view on the matter. The decision under appeal holds that the DMP lacks the necessary independence to decide the matter of disclosure and yet prevents the DMP from taking the only step which could be taken in order to bring the matter before a decision maker whose discretion is unfettered.
[43] In my respectful view, the solution proposed by the DMP is both necessary and legal. It allows for the charge to be brought before a military judge in circumstances where he or she will be in position to assess and decide the question of disclosure. Although the proposed amendment to section 187 of the National Defence Act would assist in resolving the problem (see paragraph 23, supra), the legality of the solution proposed by the DMP is not dependent on this amendment. (I question the saving effect which the Applications Judge appears to be willing to give to this amendment because pursuant to it, the DMP would still have to unilaterally decide, for a time at least, that information be sealed before the issue could be decided by a military judge. Furthermore in terms of the timing of this decision, the situation would remain the same as it is now, unless provision was also made for military judges to take their oath immediately upon being appointed for their fixed term or to accelerate the time when a military judge assigned to a particular case takes the oath. No amendment other than the one proposed with respect to section 187 of the National Defence Act was brought to our attention).
[44] The existing legislation allows a court martial to hold in camera hearings where public safety or defence concerns makes this necessary (subsection 180(2) of the National Defence Act), and subsection 112.03(2) of the QR&Os as it presently reads provides a military judge with the authority to hear and determine any question, matter or objection “[a]t any time after a Standing Court Martial … has been convened”. It follows that a military judge, after a Standing Court Martial is convened, and upon being sworn at the commencement of the proceeding, would have the authority to address the question of disclosure in camera upon the appropriate motion being brought. I note in this regard that the military judge is sworn before the rules require that the charge be read.
[45] The Applications Judge did express the concern that DCDS 05/1993 would prevent the convening order – which must be read at the commencement of the proceedings – from making any reference to the named accused (Reasons, para. 22). However, the identity of the accused, without association with JTF2, is not classified information (see Affidavit of Major Cloutier, Appeal Book, p. 74, para. 6), and there is nothing in the information which must be contained in the convening order that could result in such an association being made (see subsection 111.02(2) of the QR&Os). Although, in some instances the place where the Court is to be convened may itself constitute classified information, this issue does not arise in this case given that the DMP has advised that the trial will take place in Canada (Memo from DMP to CMA, Appeal Book, p. 157 at para. 12).
[46] The CMJ also suggested that the sealing of the charge by the DMP would prevent the CMA from providing proper instructions with respect to the publication of the notice of the court martial as required by paragraph 111.13(2)(e) of the QR&Os (CMJ’s Memorandum of Fact and Law, paras. 52-58). However, there is no requirement that the charge sheet be included in the notice of hearing and nothing prevents adequate public notice from being given in the present case, i.e., that a court martial will convene at a particular date, time and place to try the named accused, on charges of aggravated assault and ill-treatment of a subordinate alleged to have been committed by the accused on a specified date, while serving in Afghanistan.
[47] Applying the prescribed procedure to the present case – on the assumption that the CMJ fulfils her statutory duty to assign a judge – the accused would be brought before the court at the commencement of the proceeding (paragraph 112.05(2)(d) of the QR&Os), the convening order would be read (paragraph 112.05(3)(a) of the QR&Os), the judge would take the oath (paragraph 112.05(4)(a)) and the DMP would then be in a position to bring an application that the charge be kept confidential by order of the Court before the rules require that it be read (paragraph 112.05(5)(e)).
[48] The only thing that needs to happen in order to reach that stage, is that the charge be sealed for a time.
[49] In my respectful view, this way of proceeding does not offend the open court principle. As noted in Toronto Star, supra, (at para. 3) there may be instances where public access to sensitive information related to court proceedings will endanger and not protect the integrity of our system of justice and where sealing information for a brief period of time is necessary to achieve this end. In this case, no one takes issue with the fact that the DMP must abide by the policy set out in DCDS 05/1993. The result therefore is that unless the matter of disclosure can be brought before an independent decision maker in the manner suggested by the DMP, the accused will likely never be brought before justice.
[50] I respectfully conclude that allowing the charge to be sealed by the DMP for the brief period required to allow a military judge to assess the issue of confidentiality in accordance with the “Dagenais/Mentuck” approach, does not offend the open court principle, and that the Applications Judge erred in holding otherwise. (The extended time period during which the charge has remained sealed in this case is attributable to the CMJ’s refusal to assign a military judge and the ensuing proceedings).
[51] The Applications Judge went on to hold that in any event a mandamus could not issue since there were equally effective means of protecting the classified information from public disclosure. She first observed (Reasons, para. 48):
While it was not fully argued before me, I wonder whether the DMP has done everything possible to solve this issue prior to preferring the classified charge. There may be administrative steps that could avoid the problem of a classified charge sheet, thereby providing an effective alternative remedy. The DMP did not present any evidence that any other options had been explored. During cross-examination on his affidavit, Major Jean-Bruno Cloutier was asked what other options were considered. He was prevented from answering the questions by the DMP's counsel.
[52] I agree that if there were administrative steps that could be used to avoid the problem with which the DMP was confronted, they should have been pursued. However, the question which the Applications Judge should have asked is whether the DMP had any alternative means to sealing the charge sheet pending the assignment of a military judge in order to have the issue of confidentiality decided. Based on this record, I am of the respectful view that no alternate avenue was open to the DMP.
[53] The suggestion by the Applications Judge that the accused be removed from the JTF2 unit so as to allow the charge to proceed unsealed is not a solution. For an alternative remedy to be adequate, it must resolve the issue with which the DMP was confronted. On the record before us, the DMP had no authority to affect such a posting, nor can it be suggested that the assignment of personnel in the Canadian Forces should be based on considerations other than operational ones.
[54] The Applications Judge went on to consider the possible application of sections 37 and 38 of the Canada Evidence Act. She held that, for purposes of the test for mandamus, section 37 is not an effective alternative remedy (Reasons, para. 71). With respect to section 38, the Applications Judge held that there was a reasonable possibility that this provision could properly be invoked in order to prevent the classified information from being disclosed at the preliminary stage and therefore serve as an effective alternative to the solution proposed by the DMP (Reasons, paras.
60-68). She concludes that part of her reasons by suggesting that “the DMP should explore that possibility” (Reasons, para. 60).
[55] In order to bar the issuance of an order of mandamus, it is not sufficient to advance hypothetical or speculative solutions. The alternative must be “sufficient and convenient in the true legal sense of the words” (British Columbia v. British Columbia (Minister of Finance),
[1935] S.C.R. 70 at p. 86). Section 38 of the Canada Evidence Act has not been shown to meet that test in this case since it does not address the fundamental problem, i.e., the assignment of a military judge and the convening of a court martial to rule on the question of disclosure and try a service charge.
[56] Section 38 applies when a participant to a proceeding notifies the Attorney General (and the Minister of National Defence in the case of proceedings before a service tribunal) that he or she expects that “sensitive information” or “potentially injurious information” will be disclosed to the public (subsection 38.01(1) of the Canada Evidence Act). No such issue can arise before a military judge is assigned (subsections 38.01(2) and (4) of the Canada Evidence Act). At that stage, the only persons by whom and to whom classified information may be disclosed are the DMP, the CMJ and the CMA, each being authorized to receive the classified information (paragraph 38.01(6)(c) of the Canada Evidence Act).
[57] Furthermore, the obligation to notify only arises if there is an underlying “proceeding”, which the Canada Evidence Act defines as a “proceeding before a court, person or body with jurisdiction to compel the production of information” (definition of “proceeding” section 38 of the Canada Evidence Act). Only a court martial once convened has this jurisdiction (subsections 179(1) and (2) of the National Defence Act). At the stage we are at, there is no underlying proceeding.
[58] I therefore conclude that there was no effective alternative to the solution proposed by the DMP. It follows that the CMJ had the duty to assign a military judge and the CMA had the corresponding duty to convene a Standing Court Martial.
[59] For these reasons, I would allow the appeal, set aside the decision of the Applications Judge and rendering the decision which she ought to have rendered, I would order the CMJ to
assign a military judge to preside at the Standing Court Martial of the accused and the CMA to convene a Standing Court Martial forthwith. As no costs were sought by the DMP, I would make no award.
“Marc Noël”
J.A.
“I agree
J. Edgar Sexton J.A.”
“I agree
Johanne Trudel J.A.”
ANNEX I
The relevant provisions of the National Defence Act:
Admission to Courts Martial Trials public
180. (1) Subject to subsections (2) and (3), courts martial shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.
Exception
(2) A court martial may order that the public be excluded during the whole or any part of its proceedings if the court martial considers that it is necessary
(a) in the interests of public safety, defence or public morals;
(b) for the maintenance of order or the proper administration of military justice; or
(c) to prevent injury to international relations.
Witnesses
(3) Witnesses are not to be admitted to the proceedings of a court martial except when under examination or by specific leave of the court martial.
Clearing court
(4) For the purpose of any deliberation, a court martial may cause the place where the proceedings are being held to be cleared.
Admission en cour martiale Procès publics
180. (1) Sous réserve des paragraphes (2) et (3), les débats de la cour martiale sont publics, dans la mesure où la salle d’audience le permet.
Exception
(2) Lorsqu’elle le juge nécessaire soit dans l’intérêt de la sécurité publique, de la défense ou de la moralité publique, soit dans l’intérêt du maintien de l’ordre ou de la bonne administration de la justice militaire, soit pour éviter toute atteinte aux relations internationales, la cour martiale peut ordonner le huis clos total ou partiel.
Témoins
(3) Les témoins ne sont admis en cour martiale que pour interrogatoire ou avec sa permission expresse.
Évacuation de la salle
(4) La cour martiale peut ordonner l’évacuation de la salle d’audience pour ses délibérations.
Preliminary Proceedings Preliminary proceedings
187. At any time after a General Court Martial or Disciplinary Court Martial is convened but before the panel of the court martial assembles, the military judge assigned to preside over the court martial may, on application,
(a) hear and determine any question, matter or objection for which the presence of the panel of the court martial is not required; and
(b) receive the accused person’s plea of guilty in respect of any charge and, if there are no other charges remaining before the court martial to which pleas of not guilty have been recorded, determine the sentence.
Procédures préliminaires Procédures préliminaires
187. À tout moment après la convocation de la cour martiale générale ou la cour martiale disciplinaire et avant que le comité de la cour martiale ne commence à siéger, le juge militaire la présidant peut, sur demande :
a) entendre et statuer sur toute question ou objection pour laquelle il a le pouvoir d’entendre seul;
b) accepter le plaidoyer de culpabilité de l’accusé à l’égard d’une accusation et, lorsque celui-ci n’a pas plaidé non coupable à l’égard d’autres accusations, décider de la sentence.
Charge must be Preferred Cha