Canada (Director of Military Prosecutions) v. Canada (Court Martial Administrator)

Canada (Director of Military Prosecutions) v. Canada (Court Martial Administrator)
Court (s) Database
Federal Court Decisions
Date
2006-12-21
Neutral citation
2006 FC 1532
File numbers
T-1967-05
Notes
Digest
Decision Content
Date: 20061221
Docket: T-1967-05
Citation: 2006 FC 1532
Ottawa, Ontario, December 21, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
THE DIRECTOR OF MILITARY PROSECUTIONS
Applicant
and
THE COURT MARTIAL ADMINISTRATOR
Respondent
Docket: T-1968-05
AND BETWEEN:
THE DIRECTOR OF MILITARY PROSECUTIONS
Applicant
and
THE CHIEF MILITARY JUDGE
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1] The Director of Military Prosecutions (the DMP or Applicant) wishes to bring a member of Canada’s Armed Forces (the Accused) before a Standing Court Martial to face allegations that he committed serious offences of aggravated assault and ill-treatment of a subordinate. To date, he has been unable to do so, due to the refusal of the Chief Military Judge (CMJ) to assign a military judge to preside at the court martial and the refusal of the Court Martial Administrator (the Administrator or CMA) to convene the court martial.
[2] The problem before this Court arises because the alleged assault and ill-treatment occurred during the time that the Accused was posted to a position with Joint Task Force 2 (JTF 2), a special unit of Canada’s Armed Forces. Under a policy of the Armed Forces (discussed below), the name and other identifying features of the Accused cannot be made public. Thus, when the Administrator and the CMJ were provided with the charge sheet, it was classified as “SECRET”. The CMJ refused to assign a military judge to a court martial where the charge sheet and accompanying documentation were classified. The Administrator refused to issue a convening order.
[3] The DMP has brought two applications for judicial review (one against the Administrator (Court file No. T-1967-05) and one against the CMJ (Court File No. T-1968-05)), seeking orders of mandamus from this Court to compel the Administrator to convene and the CMJ to assign a military judge to preside at a Standing Court Martial of the Accused.
[4] I wish to stress that the issue before me is not about whether information related to JTF 2 should be held secret. Rather, this case is about who can make a decision of confidentiality and at what stage of military judicial proceedings that determination is to be made.
[5] The following sets out my reasons for dismissing both of these applications.
2. Issues
[6] The overarching issue in this application is whether the DMP has satisfied the requirements for a writ of mandamus. The equitable remedy of mandamus lies to compel the performance of a public legal duty that a public authority refuses or neglects to carry out when called upon to do so. The test for mandamus that has been accepted by this Court (and that is not disputed by the parties to these applications) is set out in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), 162 N.R. 177, aff'd [1994] 3 S.C.R. 1100. In brief, the requirements that must be met are as follows:
(a) There must be a public legal duty to act;
(b) The duty must be owed to the applicant;
(c) There must be a clear right to the performance of that duty, meaning that:
a. the applicant has satisfied all conditions precedent; and
b. there must have been: a prior demand for performance; a reasonable time to comply with the demand, unless there was outright refusal; and, an express refusal, or an implied refusal through unreasonable delay;
(d) No other adequate remedy is available to the applicant;
(e) The Order sought must be of some practical value or effect;
(f) There is no equitable bar to the relief sought; and
(g) On a balance of convenience, mandamus should lie.
The burden is on the DMP to satisfy this Court that all elements of the test for mandamus exist.
[7] In this application, elements (a) and (d) are, in my view, determinative. Thus, as I see it, there are two issues to be examined:
In the absence of a judicial determination that a charge be kept confidential, is there a public legal duty for the CMJ to appoint a military judge and, if so, a public legal duty for the Administrator to issue a convening order?
Has the DMP met the burden to demonstrate that there is no other adequate legal remedy available?
3. Standard of Review
[8] The parties agree that the decisions of the Administrator and the CMJ, as questions of law, would be reviewable on a correctness standard. I do not disagree. However, the DMP has applied for a writ of mandamus, and not for an order quashing the decisions of the CMJ and the Administrator. Strictly speaking, I am not reviewing the decisions refusing to appoint a military judge or issue a convening order. Thus, it is not necessary to identify a standard of review.
4. Legislative Scheme
[9] Unlike Canada’s civilian justice system, the military justice system does not have a permanent court. Rather, it functions through ad hoc courts martial that only exist when they are convened to address specific charges. Key to the establishment and operation of a court martial are the DMP, the Administrator and the CMJ whose roles are intertwined at the preliminary stages. All three positions are filled by members of Canada’s Armed Forces.
4.1 The Director of Military Prosecutions
[10] I begin with the position of the DMP. The DMP is a barrister or advocate with at least ten years standing at the bar of a province who is appointed by the Minister of National Defence (s. 165.1, National Defence Act, R.S.C., c. N-5 (referred to as National Defence Act or NDA)). He or she is responsible for the preferring of all charges to be tried by court martial and for the conduct of all prosecutions at courts martial (s. 165.11). The DMP also bears responsibility for determining the type of court martial that is to try the accused person and informing the Court Martial Administrator of that determination (s. 165.14).
[11] For purposes of this application, the function of the DMP begins with the preferring of the charge against a person. Pursuant to s. 165(1):
165. (1) A person may be tried by court martial only if a charge against the person is preferred by the Director of Military Prosecutions.
(2) For the purposes of this Act, a charge is preferred when the charge sheet in respect of the charge is signed by the Director of Military Prosecutions, or an officer authorized by the Director of Military Prosecutions to do so, and referred to the Court Martial Administrator.
165. (1) La cour martiale ne peut juger une personne sans une mise en accusation formelle de celle-ci par le directeur des poursuites militaires.
(2) Pour l’application de la présente loi, la mise en accusation est prononcée lorsque est déposé auprès de l’administrateur de la cour martiale un acte d’accusation signé par le directeur des poursuites militaires ou un officier dûment autorisé par lui à le faire.
4.2 The Chief Military Judge
[12] The Governor in Council may designate a military judge to the position of CMJ (s. 165.24). Pursuant to s. 165.25 of the National Defence Act, the CMJ “assigns military judges to preside at courts martial”.
4.3 The Court Martial Administrator
[13] The Administrator, who is appointed pursuant to s. 165.18 of the National Defence Act, acts under the general supervision of the CMJ (s. 165.19(3)) and performs “such other duties as may be specified by this Act or prescribed by the Governor in Council in regulations” (s. 165.19(2)). Of relevance to this application, the Administrator’s role with respect to the convening of courts martial is set out in s. 165.19(1):
165.19 (1) When a charge is preferred, the Court Martial Administrator shall convene a court martial in accordance with the determination of the Director of Military Prosecutions under section 165.14 . . .
165.19 (1) L’administrateur de la cour martiale, conformément à la décision du directeur des poursuites militaires prise aux termes de l’article 165.14, convoque la cour martiale sélectionnée …
[14] Further guidance on the duties of the Administrator in the convening of a court martial is set out in the Queen’s Regulations and Orders for the Canadian Forces (2005 revised) (QR&Os). Specifically, s. 111.02 requires that the convening order:
(c) identify by name, service number and rank if applicable, the accused, the military judge assigned to preside at the court martial and, in the case of a General Court Martial or Disciplinary Court Martial, the members and alternate members; and
c) mentionne le nom, le numéro matricule et le grade le cas échéant de l’accusé, du juge militaire désigné pour présider la cour martiale et dans le cas d’une cour martiale générale ou d’une cour martiale disciplinaire, des membres et des substituts;
4.4 The Court Martial Process
[15] In written submissions, the CMJ provided the following helpful review of the court martial process from the preparation of the charge sheet to the holding of the court martial. Other than submitting that steps 5 and 6 could occur concurrently, the DMP did not disagree with the summary. Implicit in the third step is the naming of a presiding military judge by the CMJ. The steps and the relevant statutory provisions are as follows:
- A charge sheet is prepared [s. 165(2) of NDA; QR&O 110.06];
- DMP refers the charge sheet to CMA [QR&O 110.07];
- CMA prepares convening order [s. 165.19 of NDA;];
- CMA forwards the convening order and the charge sheet [QR&O 111.05];
- CMA determines administrative requirements and issues administration instructions including the requirement for the publication of notice of the court martial [QR&O 111.13];
- Preliminary proceedings open to public [s. 187 of NDA; QR&O 112.03];
- The public is admitted at the beginning of the court martial [s. 180 of NDA, QR&O 112.05(2)(a)];
- The prosecutor and legal counsel to the accused take their place [QR&O 112.05(2)(b)];
- The military judge opens the court [QR&O 112.05(2)(c)];
- The accused is brought before the court [QR&O 112.05(2)(d)];
- The convening order is read publicly [QR&O 112.05(3)(a)];
- The judge hears any objection to the constitution of the Court Martial [QR&O 112.05(3)(b)];
- The judge takes the oath [QR&O 112.05(4)(a)];
- The court reporter is sworn [QR&O 112.05(4)(b)];
- The interpreter is sworn [QR&O 112.05(4)c];
- The prosecutor reads the charge sheet [QR&O 112.05(5)(a)];
- The judge may hear pleas in bar of trial [QR&O 112.05(5)(b)];
- The accused may apply for particulars [QR&O 112.05(5)(c)];
- The accused may request a separate trial [QR&O 112.05(5)(d)];
- The judge may on application by any of the parties hear and determine any questions of law or of mixed law and fact [QR&O 112.05(5)(e)];
[16] Parliament has spoken clearly that courts martial are to be public. Section 180(1) of the National Defence Act provides that the court martial shall be “public”, subject to the exception set out in s. 180(2). The relevant exception is as follows:
180. (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.
180. (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.
4.5 The Legislative Void
[17] Once a court martial has been convened (but, not until), preliminary matters may be dealt with by the military judge assigned to the case under both s. 180 and s. 187 of the National Defence Act. Section 180(2) is set out above. Section 187 provides as follows:
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.
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.
[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. The parties agree that there is a gap.
[19] There is a concrete proposal that would address the problem; that is s. 50 of Bill C-7, An Act to amend the National Defence Act, 1st sess., 39th Parl., 2006, a bill of this session of Parliament that received First Reading, April 27, 2006. Section 50 of Bill C-7 provides that s. 187 of the National Defence Act will be replaced by the following:
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.
[20] If s. 50 of Bill C-7 is enacted, any military judge would be able to hear an application by the prosecution for the sealing of the charge or other issues of confidentiality. So, with the enactment of this provision, the problem before me would disappear. Unfortunately that has not yet happened and the problem of how to deal with the issue of a classified charge is directly before me. In the absence of a legislative process by which preliminary matters of confidentiality can be dealt with prior to the assignment of a military judge, should the CMJ be required to assign a military judge?
5. Issue #1: Is there a legal duty to assign a military judge and to issue the convening order?
[21] With this background, I turn to the first issue. On the facts of this case, what is the public legal duty of each of the CMJ and the Administrator?
5.1 Role of the Administrator
[22] As described above, the Administrator is required to issue a convening order when presented with a charge (s. 187), with the information set out in s. 111.02(2)(c) of the QR&Os. However, in this case, the Administrator was missing the name of the military judge, since the CMJ refused to appoint one to the case. Further, the fact that the charge was classified prevented the inclusion of the name, service number and rank in the convening order. In short, the Administrator simply did not have sufficient information to complete a convening order that was in compliance with the QR&Os.
[23] The parties agree that the role of the Administrator in this matter is, in effect, defined by the CMJ. It is self-evident that a convening order cannot issue without the name of the military judge. So long as the CMJ refuses to assign a military judge to the court martial, the Administrator is unable to fulfil her statutory duty to issue a convening order that would be in compliance with s. 111.02(2) of the QR&Os. Thus, the application for mandamus against the Administrator turns on the refusal of the CMJ to name a military judge.
5.2 Submissions and Proposal of the DMP
[24] The DMP explained why a classified charge sheet was submitted for the Accused through the affidavit of Major Jean-Bruno Cloutier. The relevant portion of his explanation is as follows:
The classification and designation of information within the Canadian Forces is governed by National Defence Security Instruction number 27 [“NDSI 27”] . . . . This instruction provides direction to members of the Canadian Forces in assigning the appropriate security classification or designation to departmental information…
More specific direction regarding Departmental policy for protection of information pertaining to JTF 2 is provided by NDHQ instruction DCDS 05/1993, Security and Public Affairs Policy – Joint Task Force Two [“DCDS 05/1993”]. . . . It provides that the identity of Canadian Forces personnel who – like the Accused and the complainant – are posted to positions within JTF 2 carries the security designation of “PROTECTED C”. As such, the name, address and specific employment of these persons are not to be publicly associated with JTF 2. DCDS 05/1993 also provides that the movements or deployments of unit personnel for a particular operation are to be classified “SECRET” or “CONFIDENTIAL”.
[25] The DMP characterizes DCDS 05/1993 as a “Directive” and as “Instructions”. He concedes that DCDS 05/1993 is not a regulation. However, he points out that members of the Armed Forces must observe and enforce all instructions and orders. (See, for example, s. 4.02, QR&Os that requires officers to observe and enforce all orders and instructions that pertain to the performance of the officer’s duties.) This is an important consideration. As members of Canada’s Armed Forces, the DMP, the CMJ and the Administrator are bound to observe DCDS 05/1993.
[26] In the written and oral submissions, the DMP described a process that, in his view, would allow for the court martial to proceed:
Indeed, the straightforward, practical and lawful solution to address the legitimate concern raised by the CMJ with respect to 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.
[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?
[28] In responding to the DMP’s request for a convening order, both the Administrator and the CMJ expressed the view that there is a presumption of openness of military judicial proceedings, as has been established for civil proceedings (R. v. Mentuck, [2001] 3 S.C.R. 442 at 472-474; and Vancouver Sun (Re), [2004] 2 S.C.R. 332 at 345-347)). In particular, the CMJ, in an explanatory memo dated September 29, 2005, stressed the sections of these cases that set out that the presumption of openness applies at every stage of a proceeding, including the pre-trial stage.
[29] The DMP does not dispute that the jurisprudence establishes a constitutionally-protected right to an open court. However, he submits that the Supreme Court has recognized that there will be situations where derogation from the open court principle will be allowed. This, he submits is one of those situations. The CMJ, on the other hand, argues that, while derogations will be allowed, such determinations must be done by a court and not by the prosecutor.
5.3 Analysis
[30] In these applications, we are dealing with a preliminary step of judicial proceedings, that being the preferring of the charge sheet. Criminal proceedings, outside the military justice system, are commonly instituted by the laying of an information before a justice (or provincial judge). A sealing order could be made upon application by the prosecutor when the information is sworn and laid before the justice or when an indictment is preferred. The decision that an information or indictment is to be kept confidential would not be made by the prosecutor. Even though further motions related to confidentiality could subsequently be dealt with by the trial judge, a justice or provincial judge would still consider the need for confidentiality at this preliminary stage. The prosecutor would bring the application for confidentiality and the court would consider all relevant matters. After a judicial balancing of all factors, the court could conclude that public interest in disclosure outweighs the need for secrecy and deny the motion. Or, the prosecution could persuade the court that the proper administration of justice requires the maintenance of secrecy. Through the independent, judicial decision-making process, the presumption of openness is respected.
[31] The effect of following the process suggested by the DMP is that the decision to seal the equivalent of the information or indictment is being made solely by the DMP or prosecutor. I question whether such a process is either valid at law or necessary.
[32] The CMJ argues that the principles, as most recently affirmed by the Supreme Court of Canada in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188 at 191-192, answer the question before me:
Competing claims related to court proceedings necessarily involve an exercise in judicial discretion. It is now well established that court proceedings are presumptively "open" in Canada. Public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration.
This criterion has come to be known as the Dagenais/Mentuck test, after the decisions of this Court in which the governing principles were established and refined. The issue in this case is whether that test, developed in the context of publication bans at the time of trial, applies as well at the pre-charge or "investigative stage" of criminal proceedings. More particularly, whether it applies to "sealing orders" concerning search warrants and the informations upon which their issuance was judicially authorized.
. . .
I would dismiss the appeal. In my view, the Dagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings. Any other conclusion appears to me inconsistent with an unbroken line of authority in this Court over the past two decades. And it would tend to undermine the open court principle inextricably incorporated into the core values of s. 2(b) of the Charter. [Emphasis in original]
[33] There can be no doubt of the state of the law on the issue. The presumption of openness applies at every stage of a proceeding and the weighing of public interest considerations for derogating from the rule must be done by a court. Only a court may deny access to court proceedings or its documents.
[34] This interpretation of the jurisprudence is unassailable, at least where the prosecutor has access to a court to consider the question. That, of course, is the difference in the case before me. All of the cases where the principle of openness of the court process was affirmed involved situations where a standing court was available, at the preliminary stage, to hear a motion on confidentiality. Does the absence of a standing court in the military context permit the prosecutor to “undermine the open court principle inextricably incorporated into the core values of s. 2(b) of the Charter”?
[35] The DMP argues that the jurisprudence establishes that there are exceptions to the presumption and that the test described as the Dagenais/Mentuck test is to be applied in a flexible and contextual manner (Toronto Star, above at 192). I agree completely. However, the problem is that, by proceeding as suggested by the DMP, there is no opportunity for a court to be flexible at the preliminary stage; the matter is dealt with unilaterally by the DMP and, in effect, “rubber stamped” by the CMJ and the Administrator.
[36] The military justice system is intended to provide a code for the administration of justice for Canada’s Armed Forces. Obviously, there will be unique aspects to a prosecution of a member of the Armed Forces. However, neither Parliament nor internal policies indicate that the Armed Forces should not adopt the presumption of openness. For example, paragraph 1 of the Chief Military Judge, Policy on Publication of Court Martial Information, 17 September 2004 states that:
An essential characteristic of the Canadian military justice system, which is shared with the Canadian criminal justice system, is its openness and accessibility to the public. The openness and accessibility of court proceedings is essential because it increases public confidence in, and understanding of, the administration of justice.
[37] One also need only look to the proposed amendments to s. 187 of the National Defence Act to see that the current government also acknowledges that preliminary motions on confidentiality require the attention of a military judge.
[38] If the CMJ issues the convening order as demanded by the DMP, the court martial will proceed without a preliminary consideration of the legality of sealing the charge, presumably with an early motion by the prosecution, upon commencement of the trial, regarding confidentiality and in camera sessions. Perhaps, as implied by the DMP, the confidentiality considerations will be the same at the court martial as they would be on a preliminary motion. I do not know if this is correct. However, Justice Fish, speaking for the unanimous Supreme Court in Toronto Star, above at 192, identified that a preliminary step may involve different considerations of confidentiality than will the trial of a matter:
A serious risk to the administration of justice at the investigative stage, for example, will often involve considerations that have become irrelevant by the time of trial. On the other hand, the perceived risk may be more difficult to demonstrate in a concrete manner at that early stage. Where a sealing order is at that stage solicited for a brief period only, this factor alone may well invite caution in opting for full and immediate disclosure.
The same may be true here; we simply do not know.
[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?
[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.
5.4 Conclusion
[41] I am reluctant to conclude that the duty of the CMJ includes an obligation that, in effect, the presumption of openness established by the Supreme Court may be ignored at this stage of the proceedings.
[42] In sum, it offends the presumption of openness of court proceedings to allow the court martial to proceed without a full consideration of the issuance of a classified convening order. In the face of the gap or void, it is not appropriate or in keeping with principles established in Canadian law, for any of the CMJ, the DMP or this Court (on this application) to fill the gap. In the words of Justice Fish, such steps “would tend to undermine the open court principle inextricably incorporated into the core values of s. 2(b) of the Charter” (Toronto Star, above at 192).
[43] For these reasons, I conclude that the CMJ had no duty to assign a military judge to preside at the court martial. Indeed, she could not.
6. Issue #2: Are there adequate alternative remedies?
[44] I turn now to my second concern, that being whether the DMP has persuaded me that no effective alternative remedy exists. Even if I am wrong and the CMJ did have a duty to assign a military judge, the Applicant must satisfy me that there are no other viable alternatives.
[45] Mandamus is, in my view, a draconian measure. By issuing the requested writ, this Court would be interfering in the administration of military justice. I need to be convinced that all other avenues of addressing this problem have been or would be unsuccessful. In my view, there are two alternative remedies that may be available to the DMP. The first would be to attempt to obtain an administrative accommodation prior to the preferring of the charge. The second would be to request the required orders of confidentiality pursuant to s. 37 or s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5. Let me review each of these.
6.1 Administrative alternatives
[46] I should make it very clear that this is not about the wisdom of Canada’s military in seeking to classify certain information. Specifically, I do not question the value of the policy reflected in DCDS 05/1993. Further, I accept that it is necessary, for an effective military force, that all members be bound by instructions and orders. It is also uncontested that the DMP wishes to proceed with the charges against the accused as a way of ensuring that “a prosecution relating to serious charges can proceed”.
[47] The DMP submits that the Administrator and the CMJ are making it “impossible to ever convene a court martial with respect to an active member of JTF 2, even – as in the case at bar – in the face of serious charges”. This argument, in my view, shifts the burden completely to the military judicial system to accommodate instructions and orders which may be incompatible to the exercise of its judicial functions.
[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.
[49] As an example, in these unusual circumstances, would it be possible to obtain some accommodation on the application of DCDS 05/1993? I expect that instructions and orders can and do change to meet individual circumstances. Indeed, even within DCDS 05/1993, there are provisions that provide “guidance” on the disposition of requests for the release of information.
[50] In written submissions, the Administrator suggested that the Accused could be posted out of JTF 2 or attached to another unit pending his trial. The new charge sheet would not identify JTF 2, thereby avoiding the application of DCDS 05/1993.
[51] I certainly have no evidence before me upon which I could assess the viability of either of these administrative options. However, given the burden borne by the DMP on these applications, I should be satisfied that such alternatives have been considered and that these alternatives did not or could not solve the problem.
6.2 Use of provisions of the Canada Evidence Act
[52] The CMJ submits that the DMP could proceed under either s. 37 or s. 38 of the Canada Evidence Act. These provisions are set out in Appendix A to these reasons. Under either of these provisions, the CMJ argues, a judge of the Federal Court could consider whether the information in the charge sheet should or should not be disclosed.
[53] The position of the DMP is that neither s. 37 nor s. 38 provides a viable option because, on their face, the schemes do not apply. Section 37 does not apply because it is inapplicable to matters of national defence. And, s. 38 does not apply because it is available only once a court martial is convened. Having read and heard the arguments of the DMP, I am not persuaded that these provisions of the Canada Evidence Act do not provide a means of filling the gap.
[54] I will begin my analysis with an overview of s. 37 and s. 38. I will then consider whether there is an arguable case that either or both of s. 37 and s. 38 could be used to determine the issue of confidentiality of the charge. I will address the arguments presented by the parties as part of this analysis.
6.2.1 Protection of Information under the Canada Evidence Act
[55] What purpose do s. 37 and s. 38 of the Canada Evidence Act serve? In general terms, that question was answered by the comments of Chief Justice MacLachlin in Babcock v. Canada (Attorney General), 2002 S.C.C. 57, [2002] 3 S.C.R. 3 at 15:
Sections 37, 38 and 39 of the Canada Evidence Act deal with objections to the disclosure of protected information held by the federal government. Section 37 relates to all claims for Crown privilege, except Cabinet confidences, or confidences of the Queen's Privy Council; s. 38 pertains to objections related to international relations or national defence; and s. 39 deals with Cabinet confidences. Under ss. 37 and 38, a judge balances the competing public interests in protection and disclosure of information.
[56] The purpose of s. 38, in particular, is to protect information where disclosure could be injurious to national defence or international relations. Section 38 provides for judicial oversight of government claims of confidentiality for such information.
[57] On the basis of this brief overview, it appears that s. 37 and s. 38 have been designed to solve the very problem before me. The protected information (the classified charge sheet) is held by the federal government (in this case, members of the Armed Forces). A judge of the Federal Court would balance the competing public interests in protection and disclosure of the information. In this way, the problem that I identified above is addressed. The job of balancing interests is taken out of the hands of the three persons (the DMP, the Administrator and the CMJ) who are unable to do so.
[58] With respect to the availability of s. 37 or s. 38 and the task of this Court, the DMP stated the following:
. . . you have to find, as a conclusion, that it is a viable alternative; and for that, you have to look at Section 37 and say: “Well, on its face, is this a section that could provide the relief?”
And you would have to do the same analysis with Section 38: “On its face, is this a section that would apply and provide viable relief?”
. . . .
In any event, you have to do it now, because delaying it to another, or passing the job to somebody else, or to another of your [brethren] at the Federal Court on Section 38, or on another –
. . .
[59] The problem with this submission is that the DMP is failing to recognize that he bears the burden of demonstrating that s. 37 or s. 38 is not a viable alternative. It is not sufficient to raise a doubt and then place the onus on me to guarantee that a particular provision will provide the remedy.
6.2.2 Application of s. 38
[60] Since s. 38 is the most obviously relevant provision, I will begin there. Section 38 of the Canada Evidence Act protects information where release of that information would be injurious to national defence, security and international relations. The section is triggered where information that may be disclosed is “sensitive information” or “potentially injurious information” as within the definition of s. 38. Clearly, I do not have an evidentiary record upon which to make a final determination on that question. Therefore, for purposes of this application, I assume that the name, service number and rank of the Accused would constitute “sensitive information” or “potentially injurious information”.
[61] The question is whether s. 38 is available to the DMP. That is, could the DMP use the procedures set out in s. 38 to seek a decision from a judge of the Federal Court on whether the contents of the charge should or should not be disclosed?
[62] The DMP presents one main argument against the use of s. 38. In his view, s. 38 can only apply once there is a proceeding; until the court martial is convened there is no “proceeding”. A review of the words of s. 38 does not, in my view, support this narrow interpretation.
[63] The word “proceeding” is defined in s. 38 as “a proceeding before a court, person or body with jurisdiction to compel the production of information”. Under this definition, a court martial is a proceeding only upon the issuance of a convening order. I agree with the DMP that “[f]or the scheme of Section 38 to be triggered, one needs a proceeding”.
[64] Section 38.01 commences the procedures set out in the balance of s. 38. It provides that the process is triggered when a “participant who, in connection with a proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information that the participant believes is sensitive information or potentially injurious information . . .” [emphasis added]. Is that not exactly what the DMP faces? In preferring the charge against the Accused, the DMP is taking the first step in a continuum leading to a court martial. In other words, he is taking a step “in connection with” a court martial. At this preliminary stage, the DMP is required to disclose or expects to disclose or cause the disclosure of classified military information. Rationally, for purposes of the scheme of s. 38, a step so integral to the court martial must be “in connection with” that proceeding.
[65] In support of a narrow interpretation of s. 38, counsel for the DMP also presented a practical problem with the use of s. 38, based on his personal experience. He descri