- Reaction score
- 0
- Points
- 210
interesting to see the outcome
Due to the word limitation, please refer to the actual court document.
http://www.canlii.org/en/ca/fca/doc/2007/2007fca390/2007fca390.html
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.
Due to the word limitation, please refer to the actual court document.
http://www.canlii.org/en/ca/fca/doc/2007/2007fca390/2007fca390.html
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.
