Sexual assault charges stayed as questions of independence rock military justice system

A military judge has stayed sexual assault charges against a B.C. Canadian Armed Forces captain as a result of a long-simmering conflict over judicial independence that has thrown Canada's military justice system into turmoil.

The judge, Cmdr. Martin Pelletier, stayed court martial proceedings against Capt. Mark Iredale last month after finding the officer couldn't be guaranteed his right to a trial before an independent and impartial tribunal.

The decision follows stays of proceedings in three other courts martial and rulings from Pelletier's colleagues warning about the implications of an order from Chief of the Defence Staff Gen. Jonathan Vance placing military judges under the direct command of his deputy vice-chief.

The judges concluded that Vance's order meant the judiciary could be interfered with by the military executive — denying an accused the right to a fair trial.

In response, Vance suspended his order two weeks ago and the stayed cases, including Iredale's, have all been appealed.

The situation highlights the complexities of a military justice system that sits different and apart from its civilian counterpart. Courts martial have happened for years, but Vance's order exposed a problem that was hidden in plain sight, said Michel Drapeau, a lawyer and retired colonel in the Armed Forces.

Drapeau said the situation has effectively paralyzed the military justice system.

"Whether it's removed or suspended, I don't think it changes anything. Military judges are military officers first and foremost. They are subject to the Code of Service Discipline, they are subject to the orders and instructions issued by the chain of command, so they cannot be seen as independent and impartial," he said.

"It almost means that at the moment, there's an absence of the capacity by the military to provide justice to victims and those who are accused. So is it a big thing? Yes, it is."

Contacted on Thursday, the Armed Forces did not provide a comment by the time of publication.

'Justice is not a Pandora's box'

Canada has only four military judges, all of whom are officers in the regular Armed Forces. Vance's order established that they can be disciplined by the same Armed Forces executive as the men and women who stand accused before them. Critics say the implication is that a judge could be sidelined or punished for a decision that displeases a superior.

Beyond clarifying the chain of command, the rationale for Vance's order is unclear. Nor is it certain the bell can be unrung.

The chief of the defence staff has suspended the order, but observers say that's not the same as rescinding one. And one of the appeals is challenging the constitutionality of the provisions of the National Defence Act that made the order possible in the first place.

The conflict has its roots in a failed effort to prosecute former chief military judge colonel Mario Dutil, who faced fraud and false statement charges in 2018, as well as behaviour prejudicial to good order or discipline under the military's Code of Service Discipline.

The allegations related back to an allegedly inappropriate relationship with a subordinate.

Vance issued the first of two orders specifically targeting military judges days before the charges against Dutil were referred to the director for military prosecutions. He issued a second in October 2019.

The charges against Dutil were dropped earlier this year when the military couldn't find an impartial judge to hold a court martial.

Of the four judges, Dutil's deputy recused himself, two others had conflicts of interest and the third didn't speak French well enough to oversee the proceedings.

Dutil's case ended up in Federal Court, where Justice Luc Martineau sent a strong warning to politicians and military brass about a looming crisis.

The charges were dropped, and Dutil retired, but Vance's order remained.

"Public trust in the military justice system must be preserved. It is a key factor that we cannot appear to ignore when there is a risk of conflict of interest, apparent or real, which could shake the public trust in the administration of military justice," Martineau wrote.

"Justice is not a Pandora's box that can be opened as desired to see what is hiding in it, nor a game of chance where the accused must play Russian roulette with the prosecution. We are talking of the career, the reputation, the freedom and the life in the future of an individual."

'Sexual assault is a lightning rod'

Iredale was charged in December 2019 with three counts of sexual assault in relation to allegations of sexual touching and inappropriate words directed at another officer.

The incidents allegedly occurred between May 2016 and December in locations including Langley, Squamish and Surrey.

Pelletier acknowledged the impact a stay of proceedings would have on an alleged victim who is part of a military organization that has struggled in recent years to grapple with the issue of sexual misconduct.

"I have considered the interest of society in seeing that officers ... be brought to answer for their actions," Pelletier wrote.

"I am also mindful of a fact that a stay of proceedings would prevent a complainant from having her claims of wrongdoing heard."

But the military judge concluded that he had no choice.

The Iredale decision was preceded by stays in cases involving cocaine possession and insubordination. One military judge gave Vance an ultimatum to rescind the order.

Rory Fowler, a lawyer and former lieutenant-colonel, has followed the situation closely in his blog. 

He said the Iredale case leaves a complainant without her day in court and an accused with a cloud over his reputation.

"Sexual assault is a lightning rod," he said. 

"Particularly with this chief of defence staff. And that's what I find ultimately ironic. This is a chief of defence staff who said he's going to crack down on sexual misconduct."

More stay applications to be heard this week

In another decision, Pelletier traces the path of the problem through the Supreme Court of Canada and several reports written to try to tackle the issue.

But he said the central conflict has never been addressed.

"Military judges keep operating within the Canadian Armed Forces structure," Pelletier wrote.

"They have a rank that places them in a given position in the Canadian Armed Forces structure to most observers."

Drapeau predicts the case could go all the way to the Supreme Court of Canada. He said possible solutions involve: taking military judges out of the military; establishing a civilian court to oversee courts martial; or setting up a military division of the Federal Court.

Three more applications for stays of proceedings will be heard at courts martial this week. And it remains to be seen what impact Vance's suspension of his order has on appeals of the cases that have already been stayed, including Iredale's.

"The reason we're in the pickle that we are at the moment, I don't think it's the fault of the military. I don't think it's the fault of the military judges," Drapeau said.

"I think it's the fault of the parliamentarians. They've been told often enough ... and they'd decided not to act. Now they've got a crisis, and they've got to sort it out."