ARCHIVED - Annex D: Annual Report of the Director of Defence Counsel Services

Introduction

1. This annual report covers the period from 1 April 2009 to 31 March 2010. It is prepared in accordance with article 101.20 of the Queens' Regulations and Orders for the Canadian Forces (QR&O) which sets out the legal services which are prescribed to be performed by the Director of Defence Counsel Services (DDCS) and requires the DDCS to report annually to the Judge Advocate General (JAG) on the provision of these legal services and the performance of other duties undertaken in the furtherance of the DDCS mandate. The Director during this period was Lieutenant-Colonel Jean-Marie Dugas.

Role of DDCS and the Organization and Personnel of Defence Counsel Services (DCS)

Role of the DDCS

2. The DDCS is appointed by the Minister of National Defence under section 249.18 of the National Defence Act (NDA). Although he acts under the general supervision of the JAG, he exercises his duties and functions independently and in a manner which is consistent with his responsibility to look to the individual interests of those who seek advice and representation from or through Defence Counsel Services. The DDCS provides, supervises and directs the provision of the following legal services, as set out in QR&O article 101.20:

• legal advice to arrested or detained persons
• legal counsel to an accused person where there are reasonable grounds to believe the accused person is unfit to stand trial
• legal advice of a general nature to an assisting officer or an accused person on matters relating to summary trials
• legal advice with respect to the making of an election to be tried by court martial
• legal counsel for a hearing addressing pre-trial custody under subsection 159(1) of the NDA
• legal counsel to an accused person in respect of whom an application to refer charges to court martial has been made
• legal counsel to the respondent where the Minister appeals a finding or sentence or the severity of a sentence awarded by court martial
• legal counsel to an appellant with the approval of the Appeal Committee established under QR&O article 101.21
• legal advice to a person who is the subject of an investigation under the Code of Service Discipline, a summary investigation or a board of inquiry.

Organization and Personnel of DCS

3. During this reporting period the Office of DCS consisted of the Director and four other Regular Force legal officers working out of the Asticou Centre in Gatineau, Québec as well as five Reserve Force officers in private practice at various locations in New Brunswick, Québec and Ontario. The Reserve Force counsel have been active participants in the provision of legal services and the performance of the Defense Counsel Services (DCS) mandate.

4. Administrative support is provided by two clerical personnel occupying positions classified at the level of CR3 and CR5 as well as a paralegal who provides legal research services and administrative support for appeals.

5. Pursuant to section 249.2 of the NDA the Director of Defence Counsel Services acts under the general supervision of the JAG and the JAG may issue general instructions or guidelines in respect of Defence Counsel Services. However, during this reporting period no such general instructions or guidelines were issued.

Services and Activities

Professional Development

6. The National Criminal Law Program is the primary source of training in criminal law for defence counsel with DCS. In July 2009 four Regular Force lawyers attended this program. Additionally, counsel attended an annual two-day DCS in-house training program which dealt with a variety of issues including developments in criminal law, decisions of the Court Martial Appeal Court (CMAC) and modifications to the NDA.

Duty Counsel Services

7. Bilingual service is available 24/7 to Canadian Forces (CF) members, as well as to others who are subject to the Code of Service Discipline while serving abroad. DCS counsel provide verbal and written communications through a toll-free number that is distributed throughout the CF as well as a CSN number and via email, the popularity of which is growing. Usage was generally as follows:

• 1-800 access line to ensure availability of legal advice upon arrest or detention with the number provided to military police and other CF authorities likely to be involved in investigations of a disciplinary or criminal nature as well as being available on our website.
• Standard direct telephone access, available to accused persons subject to the Code of Service Discipline, for advice in relation to an election between court martial and summary trial, questions on other disciplinary matters, or all other matters authorized under the QR&O.
• Clients occasionally use email to initiate contact with DCS.

8. During the reporting period, DCS counsel handled 1194 calls. The calls ranged in duration but, on average, were approximately 14 minutes. This undertaking totalled more than 300 hours, similar to totals in previous years. The origin and language of the calls are illustrated in the following charts (Note: the total number of calls was 1194, but the chart for "Calls by Language" lists 1170. This discrepancy occurs because in some cases duty counsel failed to record the language used during the call):

Table 1: Calls by Origin

Table 2: Calls by Language

Table 3: Representation at Court Martial

Court Martial Services

9. When facing a court martial, an accused person has the right to be represented by DCS counsel at public expense, may retain legal counsel at his or her own expense, or may choose not to be represented.

10. Fifty-eight courts martial commenced during the reporting period, two of which were completed in the following fiscal year. Although this figure is less than the number of cases in the previous reporting period, it still placed considerable strain on the resources of this office. One case in particular, the General Court Martial of Captain Semrau, absorbed a significant proportion of DCS resources. In 33 of the cases commenced during this reporting period the accused was represented by Regular Force DCS officers and in 17 cases by Reserve Force DCS officers. Pursuant to the authority granted under subsection 249.21(2) of the NDA, the DDCS may hire, at public expense, civilian counsel in cases where, having received a request for representation by DCS counsel, no member of the DCS office can represent the particular individual, for example because of a conflict of interest, or because no suitable DCS officer is available. During the reporting period, civilian counsel hired by DCS appeared at six courts martial. Two accused were represented by civilian counsel at their own expense.

Appellate Services

11. Twenty-one appeals were before the CMAC at various points during the 2009-2010 reporting period. In all but one of those cases the appeal was filed by, or on behalf of, the member of the Canadian Forces. Eleven cases came from the previous fiscal year and the others were commenced during the current reporting period. Three of the cases have been subsequently abandoned by the appellant.

12. In the three cases in which an appeal or cross-appeal was entered by the prosecution, the respondent was automatically entitled to representation by DCS counsel. In one case the appellant commenced his proceedings with the assistance of civilian counsel and entirely without recourse to DCS. During this period, appellants submitted to the Appeal Committee, pursuant to QR&O subparagraph 101.20(2)(h), thirteen requests for representation by DCS. Of these thirteen requests, eleven were approved by the Appeal Committee, and two were awaiting decision at the conclusion of the reporting period.

13. Some sense of the issues and tenor of the appeals during this period is given in the cases delineated below:

• Sgt. Thompson, E.B. (CMAC-515) Sgt Thompson was found guilty of two charges under section 129 of the NDA in relation to his involvement with a female private and a subsequent conversation he had with two other privates. On 12 June 2008 he appealed. The substance of the appeal was that the military judge erred in not granting his motion for abuse of process in relation to one of the charges and that the reduction in rank imposed as sentence was too severe. On 18 December 2009 the CMAC quashed the impugned charge as an abuse of process and reduced the sentence on the remaining conviction to a severe reprimand and a fine of $2,500.
• Ex-Pte St-Onge, D. (CMAC-517) On 26 June 2008, Ex-Pte St-Onge appealed the results of his court martial in which he had pled guilty to charges of possessing cannabis, using cannabis and methamphetamine, unauthorized possession of CF ammunition, and verbally threatening a superior. The grounds of appeal were based on the jurisdiction of the court and that the sentence of thirty days imprisonment was too severe. At the conclusion of the reporting period the appeal had not yet been heard.
• MCpl Mills, T.J. (CMAC-520) On 9 October 2008, MCpl Mills appealed his conviction for assault with a weapon on the basis that the judge had erred in failing to grant his motion that his right to be tried within a reasonable time had been breached by the 20 months post-charge delay. The appeal was heard on 27 November 2009 and was dismissed.
• OS Lee (CMAC-523) OS Lee was found guilty of trafficking cocaine. He appealed the finding of guilt on the basis that the Military Judge had failed, within the specific facts of this case, to instruct the panel properly as to the mens rea of the offence. He also appealed the severity of his sentence of five months imprisonment. The appeal was heard on 19 March 2010. At the conclusion of the reporting period the decision had not yet been rendered.
• Capt               , M (CMAC-525) Capt                was found guilty of having, at some time between the 3^rd and 9^th of October 2000, made false documents contrary to section 267 of the Criminal Code. The trial started on 30 October 2008 with the accused filing a motion pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms (Charter) requesting the exclusion of evidence for unreasonable search and seizure by the Military Police, contrary to section 8 of the Charter. The Military Judge dismissed the application, convicted the accused and sentenced the accused to a severe reprimand and a fine of $3000. On 17 February 2009 Capt                filed an appeal. On 29 January 2010 the CMAC unanimously rejected the appeal. On or about 24 March 2010, the applicant filed an application for leave to appeal to the Supreme Court of Canada. At the conclusion of this reporting period the decision on that application had not yet been issued.
• LS Reid, S. (CMAC-524) & LS Sinclair, J (CMAC-526) The appellants, then PO2 Reid and PO1 Sinclair, had plead guilty to wilfully damaging property of Her Majesty's Forces contrary to paragraph 116(a) of the National Defence Act. The property in question was a database icon then in use within the National Defence Operations Center. Both members were sentenced to a reduction in rank to leading seaman and to a fine of $3,000. Their sentence appeal was heard and reserved on 12 March 2010. At the conclusion of this reporting period the decision had not been issued by the Court Martial Appeal Court.
• P01 Bradt, B.P. (CACM-527) On 31 March 2009 PO1 Bradt appealed his conviction on two charges of breach of public trust by a public officer. The Director of Military Prosecutions cross-appealed against acquittal on one charge of conduct to the prejudice of good order and discipline. The member had been sentenced to a severe reprimand and a fine of $3,000. On 16 March 2010 both the appeal and cross-appeal were dismissed by the Court Martial Appeal Court.
• Ex-OS Ellis, C.A.E. (CMAC-528) On 21 April 2009 a notice of appeal was filed by Ex-OS Ellis. The appellant had pled guilty to two charges of trafficking cocaine and two charges of conduct to the prejudice of good order and discipline for cocaine use. He was sentenced to nine months imprisonment. Before trial, the accused had brought a motion under sections 7, 11(d) and 12 of the Charter challenging the constitutionality of the scale of punishments contained in section 139 of the National Defence Act. He appealed the severity of the sentence and the Military Judge's rejection of his Charter motion. The hearing was held on 26 March 2010 and the CMAC reserved its decision. At the conclusion of this reporting period the decision had not yet been promulgated.
• LCol Szczerbaniwicz, (CMAC-513) The appellant had been found guilty of common assault. On 17 April 2008 he filed a notice of appeal. On 5 May 2009 the Court Martial Appeal Court dismissed the appeal by a majority of two to one. The member appealed to the Supreme Court of Canada and the matter was heard on 2 June 2009. At the conclusion of this reporting period the decision was not yet issued.
• Cpl Liwyj, A.E. (CMAC-530) The appellant was found guilty of three offences of disobedience of a lawful command and was sentenced to a reprimand and a fine of $750. The member filed a notice of appeal on 3 July 2009 in respect of both the conviction and sentence. At the conclusion of this reporting period the matter had not yet been heard.
• Cpl Wilcox, M.A. (CMAC-534) The appellant was found guilty, in the shooting death of a fellow soldier, of criminal negligence causing death, contrary to section 220 of the Criminal Code, and of negligent performance of a military duty, contrary to section 124 of the National Defence Act. He was sentenced to imprisonment for a period of 48 months and to dismissal from Her Majesty's service. He filed a notice of appeal on 1 October 2009. At the conclusion of this reporting period the member's appeal had not yet been heard. However, the member was granted release from custody pending the resolution of his appeal.
• MS Boyle, W.L. (CMAC-537) MS Boyle was acquitted of one count of behaving in a disgraceful manner, contrary to section 93 of the NDA and one count of an act to the prejudice of good order and discipline contrary to section 129 of the NDA in relation to some apparent "horseplay" on board a ship. The Director of Military Prosecution filed a notice of appeal on 15 December 2009. At the conclusion of this reporting period the matter had not yet been heard.
• Cpl Leblanc, T. (CMAC-538) The appellant was found guilty of sexual assault pursuant to section 271 of the Criminal Code. He was sentenced to imprisonment for a period of 20 months. The trial started on 10 November 2009 with two pre-trial motions: a challenge to judicial independence and the impartiality of general courts martial under sections 7 and 11(d) of the Charter, and a challenge to the procedures for the selection of general courts martial panel members under sections 7, 11(d) and 15 of the Charter. The Military Judge dismissed the applications. On 22 January 2010 Cpl Leblanc filed a notice of appeal against the finding, the sentence and the pre-trial decisions of the judge. At the conclusion of this reporting period a hearing date had not yet been set.
• Cpl Leblanc, A. (CMAC-539) Cpl Leblanc was found guilty of negligently performing a military duty contrary to section 124 of the National Defence Act and was sentenced to a $500 fine. Pre-trial motions under sections 7, 11(d) and 12 of the Charter challenging the constitutionality of the scale of punishments contained in section 139 of the NDA as well as the independence of the Military Judge were dismissed. On 5 March 2010, Cpl Leblanc filed a notice of appeal of the finding of guilt and of the military judge's decision with respect to his independence. At the conclusion of this reporting period a hearing date had not yet been set.
• MCpl Matusheskie, C.A. (CMAC-512) The member had been found guilty of disobedience of a lawful command in a situation where he had been given two conflicting orders, one by a Sergeant within his chain of command and a subsequent order by a Warrant Officer outside his chain of command. He brought the existence of the earlier order to the attention of the Warrant Officer and, in the face of persistent direction, followed the most recent order. The CMAC had no difficulty in finding that the Military Judge had erred in placing on the member the burden of proving that the order followed was lawful. They declined to order a new trial and acquitted the member.
• Ex-Pte Tupper, R.J. (CMAC-508) The 22 year old member with a drug dependency was found guilty of 6 charges arising out of his unauthorized departure from CFB Gagetown on two occasions and his uncooperative behavior upon arrest. He was sentenced to dismissal from the CF and 90 days detention. His appeal of both conviction and severity of sentence were dismissed. However, by the time of the hearing he had been administratively released from the CF and the CMAC found, with one judge dissenting, that military punishments of dismissal and detention were inoperative after the release of the member.

Ongoing Issues and Concerns

14. A number of areas of concern were noted during the reporting period.

DCS personnel and administrative support

15. Some issues raised in the "Bronson Report" into DCS remain outstanding. These are being analyzed and considered by our office, in conjunction with the appropriate representatives of the Office of the Judge Advocate General, with a view to finding a common approach and making reasonable advances in the delivery of Defence Counsel Services within the Canadian Forces.

16. An issue of some concern is the adequacy of the present facilities housing DCS at Asticou Centre. In this respect, the number of offices available to DCS in this location is inadequate and we are presently encroaching on the facilities of the Canadian Forces Language School to accommodate our appeals paralegal. Further, the site offers inadequate room for file storage, is distant from our client base, JAG library resources and the military legal community. It offers limited informatics support and clearly functions as an impediment to the expansion of the office as we attempt to keep pace with the demand for services.

17. Further, with respect to personnel issues, the administrative assistant (CR-5) position requires re-evaluation and potential upgrading to an AS position to reflect the nature of the work performed. This will ensure a level of parity between that position and positions doing similar work within other organizations within the Canadian Forces so as to ensure continuity of staffing within the office and that DCS continues to be an attractive place for experienced staff to work.

18. At the conclusion of this reporting period one of our Reserve Force defence counsel positions remains unfilled. We currently have reserve counsel in New Brunswick, Québec, and Ontario. The DCS reserve bar is an important resource which has and continues to make a significant contribution to the realization of our mandate.

Court Martial Administrative Issues

19. The recent practice of scheduling courts martial to begin on Mondays rather than Tuesdays, as was the case for many years, does place an additional burden on defence counsel. Defence counsel almost invariably attend courts martial on temporary duty and it is necessary for defence counsel to arrive at the location of the trial at least one business day before trial in order to meet witnesses, receive final instructions from the client and to deal with any remaining pre-trial matters. For simple cases these matters could be dealt with on the day before trial and have traditionally been dealt with on Monday. However, with base functions largely closed on the weekends and witnesses often unavailable, the change requires that counsel routinely travel to trial the week prior to address these issues on Thursday or Friday and then wait through the weekend to commence trial on Monday. Defence counsel are disproportionately affected by these changes as prosecutors are posted throughout the country and often closer to home. Judges can simply fly out on Sunday. Defence counsel are constantly on the road and chronic weekends away from family can become a significant work-life balance issue.

20. QR&O article 112.66 requires that transcripts of all courts martial be prepared “as soon as practical after the proceedings of a court martial are terminated”. These transcripts have been heavily relied on by counsel in the course of their work. There is a significant backlog in the preparation of transcripts such that access to them is not readily available to counsel in the course of their legal research or to address issues that were not subject to a published ruling or to place a decision of a Military Judge in its proper context. Additional resources need to be made available if we are to meet the spirit and the letter of this Governor in Council provision.

Systemic Military Justice Issues

21. As a result of providing 24/7 duty counsel service, DCS personnel are in a unique position to observe systemic issues affecting the military justice system. Following are two issues which I bring to your attention in your capacity as superintendent of the military justice system.

1. Custody Review Officers acting under QR&O article 105.22 sometimes impose onerous conditions that significantly restrict the liberty of members. These conditions may include reporting multiple times a day, even when the circumstances of the alleged offence for which the member was arrested would not appear to warrant such conditions. Such conditions can go on for days prior to summary trial and months should court martial be elected. Once signed, members have only a limited right of appeal to their Commanding Officer. In some cases members have been advised not to sign such conditions. This creates animosity between the member and his chain of command but forces the matter before a Military Judge. Military Justice would be enhanced by creating, from the conditions imposed by a Custody Review Officer, a right of appeal to a Military Judge.
2. DCS counsel frequently hear from deployed members who are charged with offences for which they have the right to elect trial by court martial and who have been told that, should they so elect, it will result in their immediate repatriation home. While an operational commander has the right to remove personnel from the theatre of operations, the mere fact of electing court martial would not normally place an additional burden on the chain of command as the normal pre-trial steps of referral, post-charge screening, preferral and trial preparation would not typically be accomplished within the time frame of deployment. Representations that a member will be sent home if they exercise their right to court martial place a significant barrier between members of the CF and the Canadian standards of Charter compliant justice which our court martial system has been created to hold out to them.

Conclusion

22. This has been a busy and challenging period for defence counsel within DCS and, as in years past, our first priority has been to work with, and on behalf of, members of the Canadian Forces who are charged with service offences. Ours is the privilege of assisting them as they go through what can be a very difficult time in their career and in their lives. Many go on to have full military careers and to be solid members of the military community. For others, their charges represent a departure from service life and an opportunity to retake their place as productive members of Canadian civilian society.