Catch-***NUMERALS CLASSIFIED***

My dad is pretty tight-lipped about what he does at work. Over the years, my siblings and I have created a running joke that this is because he's actually a secret agent. That, like Schwarzenegger's character in True Lies, he's just posing as a tech-firm executive as a cover. That his paunch is actually a built-in parachute. That he keeps secrets from even himself. That not only does his left hand not know what his right hand is doing, it would be surprised to learn there is a right hand.

What can I say? We're easily amused.

Less amused are our national media by a farcical situation playing out in the real-life of today's CF:

You can't charge someone you can't name, the Canadian Forces has found out.

A Federal Court judge yesterday rejected a request by the military to proceed with a court martial against a member of Canada's elite Joint Task Force 2 (JTF2) because the unit is protected by such secrecy that none of its members can be named.

The officer is alleged to have committed "serious offences of aggravated assault and ill treatment of a subordinate," Justice Judith Snider writes in her 57-page judgment.

I will refrain from questioning how the author knows definitively that it was an officer who was charged, if the documents are indeed secret.

Following this thread at the indispensable Army.ca, I was able to find a link to Justice Snider's actual ruling. It revolves around whether her court can compel the military to assign a judge to this case, even though regulations would be broken by not having the charge sheet made public. The Chief Military Judge (CMJ) and the Director of Military Prosecutions both feel their hands are tied by conflicting regulations and mandates - the former to adhere to the law in the provision of justice, and the latter to adhere to regulations while prosecuting an alleged serious crime.

Interestingly enough, someone in government spotted this conflict and a legislative fix was in the works almost a year ago:

[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.

[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?

Reading further, Justice Snider gets to the meat of the problem. It seems that NDHQ issued an instruction - specifically DCDS 05/1993, Security and Public Affairs Policy – Joint Task Force Two [“DCDS 05/1993”] - that makes it clear names, addresses, specific employment, movements and deployments of JTF2 personnel are not to be released publicly. This was done without considering the full spectrum of consequences - like the fact that the CMJ couldn't form a court in secret - which in turn caused this problem.

Unfortunately, it seems to this thoroughly amateur legal mind that the DMP tossed this into the lap of the civilian judge like a hot potato instead of pursuing a one-off workaround instead. Justice Snider rightly threw it back at him.

[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.

At the end of the day, this incident doesn't reflect negatively on the secrecy surrounding JTF2, like our media would have us believe. Oh, it reflects negatively on the unit as much as any discipline problem does, but the unit's activities and personnel are rightly shrouded from public view. The idea that this case points to a need for increased public scrutiny or civilian oversight of special operations in the CF is ludicrous. That's not to say that it doesn't require civilian oversight, just that this case has no bearing on that line of argument.

No, this incident reflects negatively on the CF legal bureaucracy instead. NDHQ should never have issued the regulation that created this Catch-22 in the first place without first ensuring all the consequences had been considered and dealt with. But with that water under the bridge and long gone, the Director of Military Prosecutions should have pursued every single option available to him, without prejudging the outcome of those efforts, before airing the CF's dirty laundry in public. Instructions given by the DCDS can be rescinded, amended, or excepted by the DCDS - and if in this case they can't, they surely could have been by the CDS or the MND. If indeed the DMP did pursue those options, but wasn't allowed to present his efforts to the Justice, then his superiors tied his hands behind his back and blew this petition before it even started.

Either way, with a legislative fix in the works, this is nothing more than a one-time administrative aberration. Those who are trying to spin it into anything more than that should be ashamed of themselves.