OTTAWA–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.
Anything to do with those assigned to the JTF2 unit is classified as secret or confidential information – including the name, service number and rank of its personnel – and cannot be disclosed.
The military's director of prosecutions (akin to the Crown attorney's office) has tried but failed so far to pursue the charges.
Snider's ruling that the prosecution could not go ahead is based on the fact the military court system has been unable to draw up an order to convene a court martial because that would involve naming the officer. In her decision, Snider says a military judge could order the name and other information kept secret, but because there's no court martial, there's no judge in place.
"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."
It's a big loophole – one that may be soon closed if a bill the Liberals first put before Parliament, and the Conservatives are pursuing, eventually passes.
Still, charges may yet go ahead.
Snider suggested the director of prosecutions had not yet shown whether the accused could be reassigned to another unit, thereby lifting the restrictions on identifying the officer; nor has the prosecutor looked at whether the military secrecy order that applies to JTF2 could be relaxed for the purposes of charging the individual and convening a court martial.
The federal court judge also suggested provisions under Canada's Evidence Act may be used to avoid disclosure of sensitive information.
A defence department spokesperson said military officials were unavailable to comment.
JTF2 comprises Canada's best-trained soldiers, and has deployed specialists to Afghanistan, as well as, reportedly, to Bosnia, Haiti and Rwanda. But little is known about their operations, training or movements.
