Suggesting Charter rights for military puts judge in Judge Advocate General’s crosshairs

As Judge Advocate General (JAG), Cathcart acts as legal advisor to the minister of national defence as well as the department, and the Governor General. File/Global News

OTTAWA — One judge’s public criticism of the military justice system led the Judge Advocate General to call into question the judge’s ability to be impartial, newly revealed documents suggest.

A series of letters obtained by Global News speak to the military justice system’s hesitance to accept it may not be perfect and hear any criticism, constructive or otherwise, said justice Gilles Letourneau, the now-retired judge at the centre of the letters.

One letter from Brig.-Gen. Blaise Cathcart, now a Maj.-Gen., expressed “grave concern regarding recent public remarks made by Justice Gilles Letourneau.” Several of the remarks Cathcart highlighted included Letourneau’s idea of extending the Charter right to a trial by jury to members of the military.

As Judge Advocate General (JAG), Cathcart acts as legal advisor to the minister of national defence as well as the department, and the Governor General.

Indeed, his concerns against Letourneau were grave; they included an apprehension of bias and working “to bring the administration of military justice into public disrepute,” Cathcart wrote in a November 2011 letter to the chief justice of the Court Martial Appeal Court.

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But the way he went about addressing them — collecting notes from public appearances and writing to the chief justice — was wrong, say some familiar with the system.

BELOW: The letter Brig.-Gen. Blaise Cathcart sent to the chief justice with concerns about justice Gilles Letourneau’s impartiality.

Cathcart’s three-page letter was accompanied by seven photocopied pages of hand-written notes then-Col. Michael Gibson (who Justice Minister Peter MacKay last month appointed to the Ontario Superior Court) and Lieutenant Commander Francois Levesque collected from Letourneau’s public appearances.

Cathcart described three instances that “gave rise” to his concerns: an interview in the Ottawa weekly Hill Times, comments made in a public forum before representatives of more than 30 countries at the Conference on Military Jurisdiction in September 2011, a paper Letourneau wrote and submitted to a seminar at Yale Law School in April 2011.

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Quotes from reports and presentations included: “The archaic provisions and rules prevent members of the military, of whatever rank, from the right to a jury trial for serious offences,” and “We are lagging behind other countries because we have military rather than civilian judges,” and “I personally have a problem with the Canadian military justice system because it should not have jurisdiction over criminal offences.”

“Taken together, I have significant concerns about the propriety of these remarks made by Justice Letourneau as a sitting judge and the impact that they may have should he continue to sit on future cases,” Cathcart wrote. “In appearing to suggest the military justice system is in very specific respects deficient at law, a reasonable observer could well view his comments as tending to bring the administration of military justice in public disrepute.”

The letter seemed to have little impact, with Chief Justice Edmond Blanchard’s terse response reminding Cathcart that the assignment of judges is “within [his] exclusive purview.”

BELOW: Chief Justice Edmond Blanchard responds to Brig.-Gen. Cathcart, suggesting a different means of bringing his concerns out.

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The allegations Cathcart raised were so serious in the mind of now-deceased Blanchard, he wrote it was critical “they be addressed in a fair, open and transparent manner.”

BELOW: Justice Gilles Letourneau writes a letter picking apart the arguments Cathcart put forward. The chief justice had alerted Letourneau to the JAG’s letter.

There is a public mechanism in place of addressing concerns of bias among judges, wherein, at the outset of a case, an individual appearing before the court can file a motion for the judge in question to recuse himself from the case.

The fact the JAG went through the “back door” is what Letourneau said surprised him most about the allegations made by a man he’d never heard from.

“If you think that a judge has a bias of some kind, you make a motion in open court. Publicly and openly,” he said.

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‘Absolutely incredible’

Clayton Ruby, a constitutional and criminal lawyer who has worked on some military cases, described the letter and conclusion from Cathcart as “crazy,” agreeing he should have addressed his concerns in the open, rather than covertly collecting notes at public appearances.

“He knows that’s the law,” Ruby said, suggesting Cathcart was seeking a blanket ruling that Letourneau not sit on military cases. “A judge has every right to be critical of the judicial system … We do not live in a country where a government spies on the judiciary and then tries to take steps against judges.”

The ability to speak out without threat of reprisal, Ruby said, is a vital part of being a judge.

“Nobody but a judge gets the perspective on the system a judge has. It doesn’t mean it’s the right perspective, but it’s the perspective that nobody else can share.”

Reached for comment earlier this week, the Office of the Judge Advocate General said Cathcart handled the situation appropriately.

“With respect to the late chief justice, the issue was addressed in a ‘fair, open and transparent; manner,” deputy JAG Col. Robin Holman wrote in an emailed response to Global News. “As superintendent, the JAG’s interest is in ensuring that any judicial proceeding within the military justice system is fair and conducted by a tribunal that is independent and impartial.”

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This wasn’t the only time the Office of the Judge Advocate General had Letourneau in its crosshairs. That same year, Letourneau and Ottawa lawyer Michel Drapeau, both considered experts on military justice, published a textbook on the subject.

The book, in part, suggested the system is outdated and deprives the military of some otherwise universal legal privileges other Canadians enjoy under the Charter of Rights and Freedoms, such as the right to a trial by jury.

One of the reasons Letourneau said he believes the military is hesitant to give its members access to trial by jury for serious offences is because it’s “easier to get unanimity” on a verdict from five people who share the same institutional background than it is from 12 people of varying backgrounds.

“They’re offended by the idea, but it’s sheer common sense,” he said.

A positive review of the 2011 book, prepared for a military journal, prompted National Defence to pen a three-page rebuttal for publication in the same journal, according to a report in the Ottawa Citizen.

Two years later, according to the same report, a television interview with Drapeau incited a 1,500-word rebuttal to comments criticizing the military’s treatment of its members.

Reached for comment, Letourneau’s co-author expressed disbelief at Cathcart’s letter.

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“Surprised would be an understatement, that a public official would act this way,” Drapeau said in an interview. “I’m surprised and very, very, very disappointed.”

Drapeau has written extensively about military law; both he and Letourneau say the Canadian military justice system is lagging behind those in other Western countries, is shrouded in secrecy and carries a significant imbalance between the power of the military and that of the individual.

Whereas the Office of the Judge Advocate General characterized their commentary as criticism, Drapeau said it’s simply a call for reform to a system that “should at least be as good as the civilian justice system.”

“Letourneau is taken to task for calling for change. It’s absolutely incredible,” he said. “We must be hitting a nerve in order to be getting this kind of reaction.”

With files from Global News’ Laura Stone

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